DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

Norman Delamar, Appellant

v.

Fort Worth Mountain Biker’s Association, Appellee

No. 02-17-00404-CV

Court of Appeals of Texas, Second District, Fort Worth

January 24, 2019

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-283758-16

Before Sudderth, C.J.; Gabriel and Pittman, JJ.

MEMORANDUM OPINION

Bonnie Sudderth, Chief Justice.

I. Introduction

Appellant Norman DeLamar filed the underlying lawsuit against Appellee Fort Worth Mountain Biker’s Association (the Association) to recover for injuries he sustained when he was knocked off of his mountain bike after he struck a downed tree across a mountain bike trail at Gateway Park (Gateway). Norman claimed that the Association was negligent in failing to properly maintain a safe mountain bike trail as purportedly required by its contractual agreement with the City of Fort Worth (City). The trial court granted summary judgment on Norman’s claims against the Association. We will affirm.

II. Background

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.[1] Norman asserted that through the Contract, the Association agreed to “assume responsibility for maintenance, construction and safety of the trails,” and as such owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norman claimed that the Association had breached this alleged duty by

• failing to make any effort to ensure that the trees alongside of the bicycle trail were not a danger to cyclists;

• failing to implement any sort of safety procedure with respect to the danger of falling trees in high bicycle (and pedestrian) traffic areas;

• failing to maintain the trails to prevent dangerous conditions from occurring despite knowing the dangers associated with cycling;

• failing to provide cyclists with adequate safeguards, or any safeguards at all, to prevent dangerous conditions from occurring; and

• consciously disregarding the heath of the trees and the danger that they pose.

The Contract provides that the Association “shall perform all work and services hereunder as an independent contractor . . . . [and] shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder[.]” The Contract specifically provides that the Association “shall, at its sole cost and expense, construct and maintain the Trails in accordance with [the] Agreement,” and it defines “trail maintenance” as including, but not limited to, “repairing, replacing, and rebuilding trails or sections of trails that are eroding or in disrepair; pruning of trees; [and] removal of brush[.]” However, the Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” [Emphasis added.] Finally, the Contract expressly reserves the City’s right to control and access all portions of Gateway: “The City does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same. The City . . . has the right at any time to enter any portion of the Parks[.]”

The Association answered and then filed a no-evidence and traditional motion for summary judgment. In its motion, the Association asserted that there was no evidence that

• the Association was negligent as it owed Norman no duty with respect to the condition of the premises; or

• the Association owed a duty to keep the premises in reasonably safe condition, inspect the premise to discover any defects, or to make safe any defect or give an adequate warning of any dangers.

Although the Association clearly challenged the existence of any legal duty it owed to Norman, the Association’s motion primarily argued that Norman’s claim sounded in premises liability rather than general negligence and that he could not artfully plead a general negligence claim when his injuries were caused by a premises defect. Norman filed a response and attached, inter alia, a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. Indeed, Norman’s “Conclusion” sought denial of the summary judgment motions because there was “more than enough credible evidence to find that the [Association] is liable under a premises liability theory for this incident[.]” [Emphasis added.] The Association filed a reply and objected to the expert report from Clemons as inadmissible hearsay.

Following the hearing on the Association’s no evidence and traditional motions for summary judgment, the trial court requested letter briefs and took the matter under advisement. In his letter brief, Norman altered his prior position and for the first time asserted that the Association’s summary judgment theory was flawed because his suit against the Association was based on a general negligence theory, not a premises liability theory. The trial court signed an order sustaining the Association’s objections to Clemons’s expert report and a separate order granting the Association’s no evidence and traditional motions for summary judgment.

On appeal, Norman contends the trial court erred by construing his claim as one for premises liability rather than general negligence and abused its discretion by sustaining the Association’s hearsay objection to Clemons’s report.

III. Norman’s Negligence Claim

A. Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant’s cause of action is entitled to summary judgment as to that cause of action. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

After an adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. A mere scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See id.

When reviewing traditional and no evidence summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).

All grounds in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

When a party moves for both a traditional and a no evidence summary judgment, we generally first review the trial court’s summary judgment under the no evidence standard of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. See id.

B. General Negligence vs. Premises Liability Theories of Recovery

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (stating that “[b]ecause premises defect cases and negligent activity cases are based on independent theories of recovery, a simple negligence [jury] question . . . cannot support a recovery in a premises defect case”); E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57-58 (Tex. App.-Houston [14th Dist.] 2014, pet. dism’d) (“Because [claimant] was limited to a premises liability theory of recovery, . . . the trial court erred when it submitted an ordinary negligence cause of action against [appellant] to the jury. . . . Accordingly, the jury’s finding that [appellant] was negligent is immaterial and cannot support a judgment against [appellant].”). As our sister court has explained, premises liability is a “special form of negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status on the premises at the time of the incident.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.-Dallas 2011, no pet.) (citing Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)).[2]

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. See Mangham v. YMCA of Austin, Texas-Hays Comtys., 408 S.W.3d 923, 929 (Tex. App.-Austin 2013, no pet.); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016).

Because the lines between negligent activity and premises liability are “sometimes unclear,” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010), determining whether a claim is one for a premises defect or general negligence “can be tricky.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015). The policy undergirding this distinction is that negligence encompasses a malfeasance theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. See Del Lago Partners, 307 S.W.3d at 776; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (explaining negligent activity concerns “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done” while premises liability concerns the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about” and quoting Keetch v. Kroger Co., 845 S.W.2d 262, 266-67 (Tex. 1992)).

C. Discussion

In his first issue, Norman argues that the trial court erred by granting summary judgment on a premises liability theory when his claims sounded in general negligence: “The Association characterized [my] lawsuit against it as one for premises liability. This argument is flawed because the Association was not the possessor of the premises when [I] was injured[.]” Norman argues that his “petition is fairly constructed as advancing an ordinary negligence claim” because he pleaded that the Association is liable for “failing to employ any procedure to ensure safety from falling trees, and for failing to maintain a safe bike path and the trees along it.” The Association responds that regardless of how Norman pleaded his claim, he is limited to a premises liability theory of recovery because Norman was injured by an unsafe or dangerous condition on the premises-not by contemporaneous negligent activity.[3]

1. Summary Judgment was Not Granted on an Unaddressed Claim Because the Association’s Motion for Summary Judgment Challenged the Existence of a Legal Duty

As a preliminary matter, we consider Norman’s contention that the trial court improperly granted summary judgment on his negligence claim when the Association’s motion for summary judgment actually addressed only an unpleaded premises-liability claim. See Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (stating it is reversible error to grant summary judgment on a claim not addressed in the motion). Three of our sister courts have addressed similar instances in which defendants filed summary judgment motions on the theory that the plaintiff had impermissibly pleaded a premises defect claim as a general negligence claim. See Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.-Houston [1st Dist.] 2011, pet. denied); Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 WL 2867372, at *4 (Tex. App.-Austin July 20, 2010, no pet.) (mem. op.); Kalinchuk v. JP Sanchez Construction Co., No. 04-15-00537-CV, 2016 WL 4376628, at *3 (Tex. App.- San Antonio Aug. 17, 2016, no pet.) (mem. op.).

In Griffin, the First District Court of Appeals considered whether “the trial court erred in granting summary judgment in favor of Shell and CH2M on his negligent-activity claims because neither Shell nor CH2M sought summary judgment on these claims.” 401 S.W.3d at 157. After stating that a trial court errs by granting more relief requested by disposing of issues not presented to it in the summary judgment motion, the First court analyzed each defendant’s summary-judgment motion and held that based “upon the plain language,” the defendants sought summary judgment “only on [appellant’s] premises-defect claim” and not his negligent activity claim. Id. at 158-59. Thus, the First court reversed summary judgment on appellant’s negligence claim and remanded the case. Id. The First court did note, however, that “[a] legal duty must be established in order for [appellant] to ultimately recover on his negligent-activity claim[, ]” id. at 163 n.4, thus signaling its concern over the viability of appellant’s negligence claim.

In Somoza, the plaintiff had been injured while operating a jet ski when he allegedly ran into a partially submerged steel cable tethered to a floating dock, near the marina owned and operated by a yacht club. Somoza, 2010 WL 2867372, at *1. He filed suit against the yacht club and alleged negligence and premises liability claims. Id. The yacht club filed a hybrid no evidence and traditional motion for summary judgment, asserting, in part, that the plaintiff “has no claim for general negligence . . . because his negligence claim sounds solely in premises liability,” and that the plaintiff has “produced no evidence of the essential elements of duty, breach, or proximate cause.” Id. The trial court granted the motion.

On appeal, the Third District Court of Appeals considered the plaintiff’s contention that the trial court improperly granted summary judgment on his general negligence claim. Id. at *4. The Third court “assum[ed] without deciding that [the plaintiff] could bring a claim for general negligence despite his failure to allege injury resulting from any contemporaneous activity by the Yacht Club” and nevertheless concluded that “he has still failed to establish the existence of a duty to support a claim in negligence.” Id. at *5.

In Kalinchuk, the plaintiff filed a lawsuit against his putative employer for negligence and gross negligence after he was injured at a baseball field renovation site by a section of bleachers that fell on him. 2016 WL 4376628, at *1. The employer moved for traditional and no evidence summary judgment, and alleged, inter alia, that the plaintiff did not have more than a scintilla of evidence to establish the existence of a legal duty. Id. In its motion, the employer relied on cases involving premises liability claims and asserted that the plaintiff purported to state a claim for negligence when his claim was “actually based on the theory of premises liability because he [sought] to recover for an injury allegedly created by a condition on the premises rather than for an injury created as a result of an activity.” Id. at *3. The plaintiff responded that the employer owed him a common law duty to exercise reasonable care and avoid a foreseeable risk of harm. Id. The trial court granted summary judgment. Id.

On appeal, the Fourth District Court of Appeals reasoned that “[w]hether [plaintiff’s] claim is a claim for negligence as he argues or a premises liability claim as [employer] contends, the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test.” Id. After applying the risk-utility balancing test to the facts of the case, the Fourth court concluded that the plaintiff had “failed to produce a scintilla of evidence creating a fact issue to support the existence of [a] legal duty owed to him by [the employer.]” Id. at *3-4.

We do not quarrel with the First court’s strict approach in refusing to read into the summary judgment motion a ground that was not clearly articulated. However, we view the approach by the Third and Fourth courts as allowing for a more expedient disposition while maintaining fidelity to Rule 166a(c)’s requirement that summary judgment motions “state the specific grounds therefor.” Tex.R.Civ.P. 166a(c); Somoza, 2010 WL 2867372, at *5; Kalinchuk, 2016 WL 4376628, at *3-4.

The existence of a legal duty is a threshold issue generally decided as a matter of law. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). And even assuming under these facts that Norman could bring a claim for general negligence, the Association in its motion for summary judgment challenged the existence of a legal duty owed to him regarding the downed tree and maintenance of trail safety regardless of whether the duty arose under a premises liability theory based on Norman’s status at the time of the injury or a general negligence theory balancing test.[4] See Kalinchuk, 2016 WL 4376628, at *3-4 (explaining whether the plaintiff’s claim is a claim for negligence as he argued or a premises liability claim as the defendant contended, “the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test”); cf. Del Lago Partners, 307 S.W.3d at 767 (applying risk-utility balancing factors to determine duty in premises liability case); Wyckoff, 357 S.W.3d at 164 (“General negligence principles apply to a contractor who has left [a] premises in an unsafe condition.”). Therefore, because the summary judgment motion fairly challenged the existence of a legal duty, we reject Norman’s contention that the trial court erred by granting the motion on an unchallenged ground, and we now analyze whether the Association owed Norman a legal duty under a general negligence theory.

2. No Legal Duty Under a General Negligence Theory

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002). “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.” Id. at 34. Of these factors, the Supreme Court of Texas has identified “foreseeability as the ‘foremost and dominant consideration’ in the duty analysis.” Id. at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.” Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.-San Antonio 2009, no pet.). However, foreseeability alone is not sufficient to impose a duty. Id.

Here, Norman pleaded that the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record, which contains the Contract and deposition excerpts, evidences the Association’s agreement to, and exercise of, some limited control over the construction and maintenance of Gateway’s bike trails by having monthly meetings to discuss maintenance issues and by building trails in the months between May and October. The summary judgment evidence also provided that the Association holds an annual work day in June to make sure the trails are in “tiptop shape” for their annual “fat tire festival.” This workday consists of going through the entire trail to look for places that needed to be trimmed or pruned.

Lawrence “Larry” Colvin, the Association’s president at the time of Norman’s crash, testified that during the monthly meetings, the Association’s members discussed safety of the trees in general as well as identified certain problem trees to City employees who “were the only ones that [could] operate the chainsaws.” Larry also testified that the Association had once asked the City to close the trail because of “so many trees down,” but that the City refused. Larry testified that the Association worked with Melinda Adams, an “urban forester” with the City, who “[took] a look at the trees.” Although Larry acknowledged that the Association had no “tree safety plan” and had never consulted an arborist, he concluded that even retaining a certified arborist to walk Gateway once a week would still not prevent falling trees in a park “hundreds of thousands of trees.”

Larry’s testimony concerning the existence of “hundreds of thousands of trees” along the mountain bike trail provided proof that the danger of a falling tree was plausible. And in his deposition, Larry acknowledged that the likelihood of falling trees would increase in “an unprecedented drought like we were in in 2014”-the year of Norman’s injury.

However, Norman testified in his deposition that he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, Norman conceded that it was possible that the tree could have actually fallen only a few hours before his crash. Moreover, the Contract expressly prohibits the Association from pruning trees without the Director’s prior written approval and expressly prohibits the Association from removing any tree without prior written permission from the Forester. Norman does not direct us to any part of the Contract showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.[5] See Felts v. Bluebonnet Elec. Coop., Inc., 972 S.W.2d 166, 169 (Tex. App.-Austin 1998, no pet.) (rejecting complainant’s argument that an electrical co-op’s tree-trimming agreement creating a limited right to trim or clear trees for the purpose of protecting its power lines “created a broader duty to maintain the area for the protection of the general public traveling on the nearby county road”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 292 (Tex. App.-Waco 1997, writ denied) (holding that “a defendant’s policy to remedy dangerous conditions he may come across does not impose a legal duty on him to these third parties” and that a defendant bears “no common law duty to remove debris . . . that was left by some other party”); see also J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 530-32 (Tex. App.-Austin 2009, no pet.) (holding a contractual agreement did not create a legal duty to a third party when the contractual benefit to the third party was not clearly intended by the contract and was merely incidental to the agreement).

Therefore, the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims. See Gonzalez v. VATR Constr., LLC, 418 S.W.3d 777, 789 (Tex. App.-Dallas 2013, no pet.) (holding that because summary judgment was proper on negligence claim, it was also proper on gross negligence claim). We overrule Norman’s first issue.

IV. Norman’s Excluded Summary Judgment Evidence

Norman’s second issue challenges the trial court’s decision to sustain the Association’s hearsay objection and strike Matthew Clemons’s report. Norman’s contention is that because he submitted an affidavit from Clemons in which Clemons swore that the attached report was a true and correct copy of the report that he had personally prepared, the report was authenticated, “which overcomes the hearsay problem.” The Association responds that Norman misunderstands its objection, which was that the report was inadmissible hearsay, not that it was not properly authenticated.

A. Standard of Review

A trial court’s rulings on the admissibility of evidence are reviewable under an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court’s discretion in determining whether an expert is qualified to testify on a matter is broad but not unbounded. In re Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). A trial court abuses its discretion by excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation. Id.; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (op. on reh’g).

B. Analysis

Norman attached a short affidavit from Matthew Clemons which stated, in relevant part, as follows:

I certify that the ‘Initial Assessment of Tree Conditions; Gateway Park Mountain Bike Trail’ was prepared on March 21, 2017 for Jackson Davis regarding Norman DeLamar’s bicycle incident, which is attached as an Exhibit to Plaintiff’s Response to Fort Worth Biker’s Association Traditional and No Evidence Motions for Summary Judgment, is a true and correct copy of the report which I personally prepared and provided Mr. Davis.

The March 21, 2017 letter was attached to Norman’s summary judgment response as Exhibit D.

The Association asserts that Clemons’s affidavit (which was not objected to), may authenticate the attached report, but it does not remove the report from the ambit of hearsay. We agree. See Tex. R. Evid. 801, 802; cf. Petty v. Children’s WorldLearning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *5 (Tex. App.-Dallas May 31, 1995, writ denied) (explaining that “[a]uthenticity is separate and apart from qualification as an exception under the hearsay rule”). Further, the report does not obviously fall within any of the exclusions from hearsay (Tex. R. Evid. 801(e)) or exceptions to the rule against hearsay (Tex. R. Evid. 803)-indeed, Norman does not assert any exclusion or exception.

Accordingly, we hold that the court did not abuse its discretion by sustaining the Association’s hearsay objection to Clemons’s report, and we overrule Norman’s second issue.

V. Conclusion

Having held that the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims and that the trial court did not abuse its discretion by excluding Norman’s expert’s report as inadmissible hearsay, we affirm the trial court’s judgment.

—–

Notes:

[1]Norman’s suit against the Association for negligence and gross negligence was eventually severed from his suit against the City.

[2]To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.-Houston [1st Dist.] 2012, pet. denied).

[3]The Association asserts it is a “non-possessory interest holder” which is “the legal equivalent of the occupier” of the bike trail portion of Gateway. Put differently, the Association contends it has rights akin to that of an easement holder. See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 309 (Tex. App.- Houston [1st Dist.] 2010, pet. denied) (“[A]n easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose.”).

[4]Although we do not reach the issue, we believe that Norman’s claim sounds in premises liability in any event. See United Scaffolding, 537 S.W.3d at 472 (“We have recognized that slip/trip-and-fall cases have consistently been treated as premises defect causes of action. In such cases, the plaintiff alleges injury as a result of a physical condition or defect left on the premises, not as a contemporaneous result of someone’s negligence.” (internal citation and quotation marks omitted)); Sampson, 500 S.W.3d at 389-90 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) (per curiam), a case with injuries caused by a bicycle crash after the cyclist ran over a metal chain stretched across a college campus driveway as illustrating a “quintessential premises defect claim”); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004) (concluding that the “allegation of an injury caused by a tree limb falling on [plaintiff] constitutes an allegation of a condition or use of real property and is an allegation of a premises defect”).

[5]Norman also does not persuade us that we should create a legal duty regarding the downed tree and trail safety based on public policy considerations. See Kalinchuk, 2016 WL 4376628, at *4. Indeed, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.

trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases


Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation

The grandparents were charged to camp at a city park, the plaintiffs, grandchildren, were not charged to be in the park so the Nebraska Recreational use act provides immunity.

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

State: Nebraska, Supreme Court of Nebraska

Plaintiff: John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al.

Defendant: City of Omaha, a municipal corporation

Plaintiff Claims: failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence

Defendant Defenses: Recreational Use Statute

Holding: for the defendant

Year: 1984

This is an older case. However, it has been followed and clarifies some of the issues concerning recreational use law. The grandparents of one of the plaintiff’s went camping in the city park. They paid a fee which the Supreme Court defined as a fee to “park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities…” Anyone else visiting the park, including the plaintiff entered the park for no charge.

The plaintiffs were the grandson, of the grandparents who paid the fee. The plaintiff grandchildren had not paid any fee nor had his parents to enter and play in the park. While the children were there they had been given firecrackers to use by his father. A 55-gallon drum that was obviously not a trash barrel was sitting next to a trash barrel.

The drum was closed except for a plug which was removed on the top of the drum. The drum had a flammable sign on its side. The plaintiffs were using the drum to set the firecrackers on and light them. One child dropped a lit firecracker into the drum which exploded causing injuries to the plaintiff.

The trial court found for the plaintiff and found the city, which owned the park had:

…failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent.

The defendant city appealed.

Analysis: making sense of the law based on these facts.

The Nebraska Recreational Use statute has been re-written so the sections quoted in this case may not be accurate today. The court quoted:

Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: “Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

The new Nebraska Recreational Use statute states:

§ 37-731. Landowner; duty of care.

Subject to section 37-734, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

The court then focused on the term charge. The plaintiff argued the grandparents had paid a charge. Therefore, the recreational use statute did not apply.

However, the court found the money paid by the grandparents was not to enter on the land, but to access specific services.

The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee.  Charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities.  Payment of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public. 

The court looked at other decisions, which had decided the fee issue based on the same analysis.

Georgia

…a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot.  [Washington], wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.

Ohio

It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for the purchase of gas, food and for the rental of a canoe.

Additionally, the plaintiff’s and their parents did not pay to enter on the land. The fee was paid by a grandparent, not the plaintiff. The grandparents entered the park at a different time and now with their children or grandchildren.

The next issue was whether the actions of the city in managing the park and not finding or removing the barrel were willful or wanton. Under Nebraska law willful and wanton is defined as:

In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result.  The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences.  To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury.  To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith.  Wanton negligence has been said to be doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.

The court found the city had acted correctly because the barrel had not been found by the city in its normal operation. If the city had found the barrel, the city stated the barrel would have been removed. The court then stated the not only was the city not willful and wanton, but the plaintiffs were contributorily negligent by their actions.

Contributory negligence has been replaced by joint and several liability. At the time, being found contributorily negligence would have been a complete bar to recovery by the plaintiffs. This analysis was based on the law which prohibited the use of fireworks by the city and by park regulation.

The court reversed the trial court decision finding for the city.

So Now What?

This is an old decision which still stands today and has been followed in numerous courts, which define their statutes this way. If you are a landowner whose land is open for recreation, this may provide a narrow window where you can open the land for free and yet recover some of your costs for extra services you may provide for people who wish to pay for those services.

What do you think? Leave a comment.

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Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al., Appellees, v. City of Omaha, a municipal corporation, Appellant

No. 82-814

SUPREME COURT OF NEBRASKA

216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

February 17, 1984, Filed

COUNSEL: Herbert M. Fitle, City Attorney, James E. Fellows, and Timothy M. [***3] Kenny, for appellant.

Thomas F. Dowd and John P. Fahey of Dowd & Fahey, and J. Patrick Green, for appellees.

JUDGES: Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ. Shanahan, J., dissenting. White and Grant, JJ., join in this dissent.

OPINION BY: BOSLAUGH

OPINION

[*488] [**311] This is an action under the Nebraska Political Subdivisions Tort Claims Act against the City of Omaha, Nebraska, to recover damages for the injuries sustained by the plaintiffs, John Garreans, Jr., and Vince Hartline, in an explosion which occurred [**312] at N.P. Dodge Park on July 5, 1980, while the plaintiffs were visiting with their grandparents, Ray and Evelyn Stoops, at the park. The petition included a second cause of action for the medical expenses incurred by the parents of the plaintiffs as a result of the explosion. At the time of the accident both plaintiffs were 12 years of age. The action was brought by their fathers as the next friends of the plaintiffs. The defendant has raised no issue in this court concerning joinder.

The evidence shows that on July 3, 1980, Ray and Evelyn Stoops entered N.P. Dodge Park in Omaha, Nebraska, with their camper, intending [***4] to camp in the park over the 3-day holiday. Evelyn Stoops paid [*489] a $ 10.50 fee at the concessionaire’s office for the use of camper pad No. 25 for the 3-day period. Electrical service was provided at that pad. While they were setting up camp, the Stoopses noticed a black, 55-gallon drum nearby. The black drum was in addition to a trash barrel at the pad, which was a 55-gallon drum from which the top had been removed. Trash barrels, which consisted of 55-gallon drums from which the tops or lids had been removed, were distributed throughout the park, including the camping area. These drums were painted various colors and were labeled “TRASH” on the side.

Printing or lettering on the side of the black drum indicated that it had contained an antifreeze compound. A red or orange label, approximately 4 inches square, was affixed to the top of the drum. The label bore the legend “Flammable Liquid” printed below a representation of a fire or flames.

The lid or top of the black drum was intact, and the drum was closed except for a small opening, approximately 1 inch in diameter, from which a plug had been removed. There is no evidence that the city placed the black drum [***5] in the park, and a search of city records showed that the city had not purchased the black drum. The plaintiffs contended that the city was negligent in failing to remove the drum from the park.

On July 5, 1980, the plaintiffs entered the park to visit with their grandparents at camper pad No. 25. In accordance with park policy no admission fee was charged them. Both boys had been given firecrackers by their fathers. The boys used a cigarette lighter to light the firecrackers, and used the black drum as a shelf for their activities. The explosion occurred when they dropped a lighted firecracker into the black drum through the 1-inch hole in the lid. The drum exploded, spraying flammable liquid on the boys. John received severe burns on his [*490] lower extremities. Vince suffered injuries to his nose and arm, and was also burned.

The trial court found that the city had failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent. Judgment was entered [***6] in the amount of $ 243,190.57 for John Garreans, Jr., and in the amount of $ 104,726.95 for Vince Hartline.

One of the principal issues in the case was whether the Recreation Liability Act was applicable. The city assigns as error the failure of the court to properly apply the standard of care found in the Recreation Liability Act.

Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: [HN1] “Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

Neb. Rev. Stat. § 37-1005 (Reissue 1978) provides: [HN2] “Nothing in sections 37-1001 to 37-1008 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the [**313] person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made [***7] by the owner of the land.”

The act thus provides that an owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility, although the owner may be liable for certain willful actions.

The trial court found that the fee paid by Evelyn [*491] Stoops for the use of the camper pad constituted a “charge” for entry upon land and that the actions of the city amounted to “willful negligence.”

Findings of fact made by the district court in cases brought under the Political Subdivisions Tort Claims Act will not be disturbed on appeal unless clearly wrong. Studley v. School Dist. No. 38, 210 Neb. 669, 316 N.W.2d 603 (1982); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

The city through its operation of N.P. Dodge Park provides camping, picnic, and sports facilities, and the park is a “recreational facility” within the meaning of the act. Neb. Rev. Stat. § 37-1008 (Reissue 1978) [HN3] provides in part: “(3) the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, [***8] nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.” See Watson v. City of Omaha, supra.

The term “charge” is defined in § 37-1008: “(4) the term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land.”

The clear meaning of this statute is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. [HN4] Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language. County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62 (1982); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).

The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee. Charges were made for the right to park a camper on a pad, for the right to [*492] pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment [***9] of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public. We conclude that the fee paid by Evelyn Stoops was not a charge for entry upon the land but was a fee paid for the right to park a camper upon a specific pad.

This conclusion has been reached by other courts faced with similar issues. In Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969), a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot. See, also, Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.

In Moss v. Dept., 62 Ohio St. 2d 138, 142, 404 N.E.2d 742, 745 (1980), the Ohio Supreme Court stated: “R.C. 1533.18(B) defines a ‘recreational user’ as one who has permission to enter upon ‘premises’ without the payment of a fee or consideration. It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for [***10] the purchase of gas, food and for the rental of a canoe. Nor was this a situation wherein the state attempted to circumvent liability by charging fees for the use of all facilities, in essence charging an entrance fee, although not labelling it as such. It is undisputed that the Mosses and decedent [**314] O’Neal could have brought the same items to the parks that they purchased or rented while there, and still have made use of the park facilities. Consideration should not be deemed given under R.C. 1533.18(B) unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admittance fee. Appellants’ contention is without merit.”

[*493] Moreover, the fee for use of camper pad No. 25 was paid by Evelyn Stoops and not by the plaintiffs. The plaintiffs therefore were nonpaying, recreational users of the park facilities and thus are not entitled to recover for injuries not caused by the city’s willful actions. See Garfield v. United States, 297 F. Supp. 891 (W.D. Wis. 1969).

Since the plaintiffs did not pay a charge to enter the park, the next issue which we consider is whether the evidence will support [***11] a finding that the city was guilty of a “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” A review of the evidence in light of the applicable law warrants only the conclusion that the actions of the city were not willful or malicious. The finding of the trial court on this issue is not supported by the evidence.

[HN5] In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences. To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury. To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference [***12] to the consequences and with consciousness that the act or omission would probably cause serious injury. 57 Am. Jur. 2d Negligence §§ 101-105 (1971).

In Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928), a workmen’s compensation case, the court stated: [HN6] “[W]ilful negligence may be defined [*494] as (1) a deliberate act; or (2) such conduct as evidenced reckless indifference to safety. As a statutory term it involves more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in a degree, a willingness to take a chance.” (Syllabus of the court.)

In Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980), the court said: [HN7] “‘Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known [***13] duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.’ Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).”

In Ewing v. Cloverleaf Bowl, 20 Cal. 3d 389, 402, 572 P.2d 1155, 1161, 143 Cal. Rptr. 13, 20 (1978), the court stated: [HN8] “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ ( Williams v. Carr, supra, 68 Cal.2d 579 584 [440 P.2d 505, 509, 68 Cal. Rptr. 305, 309 (1968)].) ‘If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an [**315] extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of the mind of the actor and his actual concern for the rights of others, we call it willful misconduct. . . .'”

In Jones v. United States, 693 F.2d 1299 (9th Cir. [*495] 1982), the court addressed [***14] the issue of what constitutes willful or wanton misconduct under Washington’s recreational use statute. The court held that the defendant must act or fail to act with actual knowledge of the hazard in order to be held liable under the statute.

The record does show that park employees did not observe the barrel on their routine trips through the park. The employees testified that had they noticed the barrel, they would have removed it.

The failure to observe the barrel may have been ordinary negligence in that the city in the exercise of due care “should have known” of the existence of a danger, but that does not amount to willful misconduct. An actor cannot act willfully in failing to remove a danger when he has no knowledge of it.

The city has also assigned as error the finding of the trial court that the plaintiffs were not guilty of contributory negligence. [HN9] An actor is contributorily negligent if he breaches the duty imposed upon him by law to protect himself from injury; if his actions concur and cooperate with actionable negligence of the defendant; and if his actions contribute to his injuries as a proximate cause. Stephen v. City of Lincoln, 209 Neb. 792, 311 N.W.2d [***15] 889 (1981). A child is required to exercise that degree of care which a person of that age would naturally and ordinarily use in the same situation under the same circumstances. Huff v. Ames, 16 Neb. 139, 19 N.W. 623 (1884); Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260 (1981).

Although we have concluded that no “willful or malicious” negligence existed on the part of the city, we believe the evidence in this case shows that the plaintiffs were contributorily negligent sufficient to bar their recovery as a matter of law. The finding of the trial court to the contrary was clearly wrong.

The use of firecrackers in the city of Omaha and within the park was prohibited by ordinance, as well as by park regulation. The plaintiffs had been [*496] warned by their parents that fireworks were dangerous and that they should be careful when using them. The plaintiffs testified that they were aware of the danger involved in using fireworks. The degree of care required increases when an actor is dealing with a dangerous activity such as exploding firecrackers. See Martinez v. Hoveling, 184 Neb. 560, 169 N.W.2d 428 (1969). Despite these warnings, the evidence is that [***16] the plaintiffs were lighting firecrackers above the opening in the drum and dropping lighted firecrackers into the drum.

Although there is conflicting testimony with regard to whether the boys noticed the “flammable” marking on the drum, the label was plainly visible, and the plaintiffs testified that they understood what the term “flammable” meant. In the exercise of proper care the boys should have seen the warning label on the top of the drum upon which they were lighting firecrackers. Moreover, they should have known that dropping lighted firecrackers into the drum created an unreasonable risk of explosion.

In the following cases the actions of children with regard to their use of firecrackers was held to be contributory negligence: Thornton v. Ionia Free Fair Association, 229 Mich. 1, 200 N.W. 958 (1924) (14-year-old, who had experience with firecrackers, held negligent in setting off firecrackers he found at fairgrounds); Mathews v. City of Albany, 36 Cal. App. 2d 147, 97 P.2d 266 (1939) (12-year-old who had knowledge of properties of fireworks held contributorily negligent); Shelanie v. National Fireworks Association, 487 S.W.2d 921 (Ky. App. 1972) (14-year-old [***17] who admitted he knew and had been warned about dangers of fireworks held contributorily negligent).

[**316] The judgment of the district court is reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded with directions.

DISSENT BY: SHANAHAN

DISSENT

[*497] Shanahan, J., dissenting.

The majority opinion misconstrues the Recreation Liability Act, Neb. Rev. Stat. §§ 37-1001 through 37-1008 (Reissue 1978). Section 37-1001 states: “The purpose of sections 37-1001 to 37-1008 is to encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.” The legislative history of the Recreation Liability Act and numerous interpretative decisions by courts of states having statutes similar to the Nebraska act compel the conclusion that the act does not apply to the present case. The Recreation Liability Act is designed to encourage public access to and recreational use of privately held undeveloped lands. To induce the private landowner’s permission [***18] for such public use, the Legislature has promised reduced exposure to liability for injuries occurring in recreational areas opened to the public. See, Tallaksen v. Ross, 167 N.J. Super. 1, 400 A.2d 485 (1979); Harrison v. Middlesex Water Company, 158 N.J. Super. 368, 386 A.2d 405 (1978); Michalovic v. Racing Assn, 79 A.D.2d 82, 436 N.Y.S.2d 468 (1981); Johnson v. Stryker Corp., 70 Ill. App. 3d 717, 388 N.E.2d 932 (1979); Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983). “The purpose of this [recreational use legislation] is to limit the liability of private landowners, thereby encouraging them to make their property available for public recreation. . . . Thus, there is an objective basis for the aim of recreational use acts: to promote increased public access to private lands by reducing the liability of landowners and occupiers.” Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 3-4 (1977). By the Recreation Liability Act the state avoids expensive acquisition of considerable land for [*498] public recreational use, that is, state-owned or -leased [***19] areas, and in return grants restricted or limited liability to private landowners providing areas for public recreation. Consequently, the question of negligence in operating a city park is not within the purview of the Recreation Liability Act. Putting aside the particular situation involved in this case, patrons of public parks should be alert to the effect of the majority opinion and its rule regarding care required in operating a municipal park, i.e., responsibility for injury caused only by willful or malicious failure to protect the public admitted without charge to any city park.

Without conceding applicability of the Nebraska Recreation Liability Act to the present case, we disagree with other aspects of the majority opinion.

There were 46 camper pads within the city park. Ray Stoops, grandfather of the plaintiffs, paid $ 10.50 to park his trailer on camper pad No. 25. The fee or charge entitled the Stoopses to 3 days’ occupancy of the camper pad, namely, until July 6, according to registration receipt No. 6268 issued by the park caretaker for pad No. 25. Also, in exchange for the fee, the city provided Stoops with electrical service for his camper pad, or, as the city [***20] superintendent of parks testified, Stoops was “allowed to plug into the electrical stanchion that’s at that particular pad for his trailer.” Electrical service was not available to everyone entering the park but was provided only to those paying for particular camper pads. As testified by city park employees, the superintendent of parks, district foreman, and caretaker for the park, Stoops had “exclusive possession” of pad No. 25, for, as the superintendent of parks testified, “That’s the whole intent.” The district park foreman acknowledged that when a person “rented” a pad, that person was entitled to exclusive use to the extent that, upon request by the paying occupant of the pad, park personnel would [**317] remove any unwanted or unauthorized person intruding upon the camper pad. [*499] If those efforts of park personnel were unsuccessful, police would be summoned to remove the unwanted intruder. As described by the park caretaker: “I would call the cruiser.” The park caretaker also testified there was no restriction regarding visitors to Stoops’ camper pad, including visits by Stoops’ grandchildren, which was “consistent with the fee that he paid.”

The majority opinion [***21] acknowledges that Stoops paid “a fee . . . for the right to park a camper upon a specific pad.” Although the majority feels that the nature of negligence under the Recreation Liability Act turns only on the presence or absence of a charge for admission, an admission fee is not the sole determinant regarding the type or degree of negligence required for liability under the act. The March 26, 1965, Committee Statement on L.B. 280 (Recreation Liability Act), of the Agriculture and Recreation Committee, contains the following: “The act provides no inherent limitations on liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or for injury suffered in any case when a charge is made unless that charge be in the nature of rent.” (Emphasis supplied.) Stoops’ use and occupancy of the camper pad included benefits and rights not enjoyed by the general public admitted to the park, and even included exclusion of the public from the camper pad, if Stoops saw fit. Stoops acquired such benefits and rights by payment of the fee or charge not required of the general public for admission to the park. In the final analysis, and by [***22] any reasonable definition or construction, the charge paid by Stoops was rent, that is, consideration or compensation “paid for use or occupation of property.” Black’s Law Dictionary 1166 (5th ed. 1979). See, Modular Concepts, Inc. v. So. Brunswick Twp., 146 N.J. Super. 138, 369 A.2d 32 (1977); Rosewood Corp. v. Transamerica Ins., 57 Ill. 2d 247, 311 N.E.2d 673 (1974); Whiting Paper Co. v. Holyoke Water Power [*500] Co., 276 Mass. 542, 177 N.E. 574 (1931); White Roofing Company v. Wheeler, 39 Ala. App. 662, 106 So. 2d 658 (1957); Kennedy v. Boston-Continental Nat. Bank, 11 F. Supp. 611 (D. Mass. 1935); Young v. Home Telephone Co., 201 S.W. 635 (Mo. App. 1918). “Charge,” within the Recreation Liability Act, includes not only payment for admission to a recreational area but also the charge paid for the use or occupancy of a site within the recreational area. The Recreation Liability Act was clearly intended to preserve rights of persons injured by ordinary negligence of the landowners charging rent as in the case now before us.

As one of the grounds for denying recovery by the plaintiffs, the majority states: “Moreover, the fee for use of camper pad No. [***23] 25 was paid by Evelyn Stoops [plaintiffs’ grandmother] and not by the plaintiffs.” Lurking within the majority opinion is the requirement of privity — liability dependent upon a precedent contractual relationship between the injured person and the negligent tort-feasor. “At one time a showing of privity was considered necessary to occasion liability for negligence, but the courts have been getting away from that doctrine and many have entirely repudiated and discarded it; and under the modern doctrine liability is based on foreseeability rather than privity.” 65 C.J.S. Negligence § 4(11) at 502 (1966). Justice Cardozo, almost 70 years ago, rejected the condition or requirement of privity in a product liability suit for negligence, when he stated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 390, 394, 111 N.E. 1050, 1053-54 (1916): “We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. . . . [F]oresight of the consequences involves the creation of a duty.” As expressed in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964): “It [***24] is axiomatic that every person owes to all others a duty to exercise ordinary [*501] care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, [**318] privity of interest or the proximity of relationship, but extends to remote and unknown persons.” See, also, Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939); cf., McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571, 165 A.2d 207 (1960); Robinson v. Colebrook Guaranty Bank, 109 N.H. 382, 254 A.2d 837 (1969). Today, most courts adhere to the rule that duty as an element of negligence is based not on privity but on foreseeability that harm may result if care is not exercised. See, Harvard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974); Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); cf. J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979). “The duty of vigilance to prevent injury has its source in the law applicable to human relations rather than in a narrow conception of privity.” 57 Am. Jur. 2d Negligence [***25] § 37 at 385 (1971). In the case before us it was foreseeable that family members, including the Stoopses’ grandchildren, would be visiting Ray and Evelyn Stoops at their trailer. This foreseeability resulted in the city’s duty to use reasonable care in protecting Stoops’ visitors, namely, guarding against injuries caused by hazards such as the barrel bomb on pad No. 25. It is some small solace that the explosion did not launch the trailer from the pad. “The rule of reasonable care under the circumstances could not limit the conduct of Robinson Crusoe as he was first situated. But as soon as he saw the tracks in the sand, the rule began to have vitality. He then had notice that there might be other persons on the island, and this knowledge of their presence made it his duty as a reasonable man to use reasonable care to the end that no act of his should injure them.” Huckabee v. Grace, 48 Ga. App. 621, 628, 173 S.E. 744, 749 (1934). Footprints, camper pads, and trash barrels; [*502] the result is the same. At sea on privity, Nebraska jurisprudence will find itself on an island without even Crusoe.

Established park policy called for removal of any barrel not placed in [***26] the park by the city. The city had no black barrels as a part of the trash collection system for the park. (On July 5, after the explosion and in front of the caretaker’s house in the park, an arson investigator for the Omaha Police Department found a similar “55-gallon drum, trash-can” bearing a precaution about contents with an “extremely high flash point.”) City employees made frequent trips in the area of pad No. 25 and daily removed trash from the other, differently colored barrel sitting inches from the black barrel. The city’s activity, or more aptly the city’s inactivity, and the barrel’s continued presence at pad No. 25 would lead anyone to conclude there was nothing dangerous in that setting. As testified by Evelyn Stoops, grandmother of the plaintiffs: “Anything in the park is supposed to be safe . . . .” Under the circumstances one would reasonably believe and rely that the city had provided a safe park and not a dump for a discarded, dangerous barrel containing combustible material. “‘In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved [***27] in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.’ [Citations omitted.] Moreover, under the Political Subdivisions Tort Claims Act, section 23-2406, R.R.S. 1943, the ‘findings of a District Court under the act will not be disturbed on appeal unless they are clearly wrong.’ [Citation omitted.]” Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Negligence — the city’s negligence and contributory negligence of the plaintiffs — was a question of fact resolved by the trial court in favor of the plaintiffs. [*503] That conclusion and determination is not clearly wrong.

For these reasons the judgment of the trial court should have been affirmed.

White and Grant, JJ., join in this dissent.


Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.

Remember each state (and sometimes city) has different state immunity acts. This analysis only applies to Dallas Texas. What is interesting is city could be held liable for gross negligence.

Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

State: Texas

Plaintiff: Saundra Harris Mitchell and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris

Defendant: City of Dallas

Plaintiff Claims: City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area

Defendant Defenses: Texas Tort Claims Act

Holding: Reversed and remanded for trial

Year: 1993

State tort claims acts very greatly from state to state. In many states, it is impossible to sue the state and in others, it is quite easy. Some states limit the amount of recovery and the type of claims, in others not so much. If you work for a city, county or state as part of the parks, recreation or open space program, it will be beneficial to learn your state’s tort claim act and your requirements under it.

In this case, the City of Dallas, Texas, the defendant constructed a 15’ to 25’ retaining wall to stop erosion next to a creek. The top of the wall was next to a sidewalk and a restroom. The plaintiff minor was riding his bicycle on the sidewalk when he fell off and over the wall.

The plaintiff through his mother and father sued the city for his injuries. At the trial court level the city filed a motion for summary judgment and won. The plaintiff’s appealed.

Several issues in the decision dealing with the intricacies of the Texas Tort Claims Act will be skipped in this review because it applies solely to Texas.

Summary of the case

The first interesting issue was whether the claims of the plaintiff were governed by common law or statute. Meaning did the Texas law on land owners apply or did the law that existed prior to the statute concerning landowners apply. Said another way, did the ability to establish and create city parks occur because it was a proprietary function of a city. State statutes state that “operation of parks and zoos is a governmental function.”

The difference between a proprietary function and a governmental function will define the different claims and possible recoveries that are available. In this case, the appellate court held that the park was covered by the statute and the creation, care; maintenance of the park was governmental. As such, claims had to come under the Texas Tort Claims Act.

The next issue was the standard of care owed by the city to park users. The plaintiff claimed they were invitees, and as such, owed a higher standard of care than a trespasser. An invitee is a person the landowner invites to the land and receives a benefit from the invites’ presence on the land. The plaintiff argued that because they paid taxes, they were invitees.

There are three definitions of people coming upon the land; Trespassers, Licensees and Invitees. A landowner owes little duty to a trespasser, only owes a licensee a duty to refrain from wilful, wanton or gross negligence, and owes an invite the highest degree of care.

However, the payment of taxes argument did not fly with the court. Under the statute, the standard of care owed by a city to park users was that of a licensee.

The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition, and the licensee does not.   

Under the law of Texas the city, to be liable, must be grossly negligent.

Gross negligence is defined as “such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.

In a motion for summary judgment, the party opposing the motion must only create a question about how the law applies to the facts to have the motion denied rather than prove any issues. The city to win on a motion for summary judgment must conclusively negate at least one of the essential elements of the plaintiff’s case to win. Here, the plaintiff’s created a question as to whether the construction of the wall was done in a wilful, wanton or grossly negligent manner.

The next issue was whether the city had notice of the defective condition. The city presented three affidavits from officials saying they had never heard of problems with the wall. However, the court found that knowledge was more than affirmatively not knowing about problems.

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of premises  created a condition that posed an unreasonable risk of harm may support an inference of knowledge.

Knowledge can be anyone in the employee of the city.

In conclusion, the court stated:

The establishment and maintenance of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.

We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence 5 in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition. 6 We sustain the Mitchell’s second and third points of error.

5  The duty owed to a licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.

6  The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.

So Now What?

The most important thing to take away from this decision is the vast differences between state tort claims act. In some states, this same fact situation would not create liability and in some states very few of the state tort claims defenses would work.

Of interest was the issue that the city to be found liable had to be found wilful, wanton or grossly negligent. The decision does not state whether if a jury finds the city was wilful, wanton or grossly negligent if increased damages are available to the plaintiff. Most state tort claims acts specifically deny additional damages.

Also not discussed whether the Texas Recreational Use Statute applied to parks. Since parks are free, many states include state, county and city land in the definition of land protected by recreational use statutes. In most states, this is the first and best defense to claims arising from parks and open space.

What do you think? Leave a comment.

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Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

Saundra Harris Mitchell and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants v. City of Dallas, Appellee

No. 05-91-01416-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

March 31, 1993, Filed

PRIOR HISTORY: [**1] On Appeal from the 68th District Court. Dallas County, Texas. Trial Court Cause No. 89-13400-C

COUNSEL: For Appellants: KRISTINA BLINE DIAL.

For Appellee: PATRCIA MEDRANO.

JUDGES: Before Justices Lagarde, Kinkeade, and Barber 1

1 Justice Will Barber succeeds Justice Jeff Kaplan, a member of the original panel. Justice Barber has reviewed the briefs and record in this case.

OPINION BY: WILL BARBER

OPINION

[*743] OPINION

Opinion By Justice Barber

This is a premises liability case. Saundra Harris Mitchell and Jan P. Mitchell sued the City of Dallas for damages sustained by their minor son when he fell from his bicycle at a municipal park. The City moved for summary judgment. The trial court rendered judgment in favor of the City. We reverse and remand.

FACTUAL BACKGROUND

Ashley Harris suffered serious injuries when he fell from his bicycle into a creek bed at Hamilton Park. The park is owned [*744] and maintained by the City of Dallas. The accident occurred at a part of the creek where there is a fifteen to twenty-five foot drop-off. This condition was created by a gabion wall constructed by the City for erosion control. [**2] The wall consists of rocks wired together. Ashley fell over the edge of the drop-off onto the rocks below.

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They also allege that the City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area.

ISSUES ON APPEAL

The Mitchells attack the trial court’s summary judgment on two broad grounds. First, they contend that this case is governed by common-law principles because the establishment and maintenance of public parks are proprietary functions. Alternatively, the Mitchells argue that their claims against the City are within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They assert that fact issues exist concerning gross negligence in the construction and maintenance of the gabion wall and the City’s negligent failure to warn of or correct this dangerous condition.

LIABILITY UNDER COMMON LAW

In their fourth point of error, the Mitchells contend that the Texas Tort Claims Act does not apply to this case. Rather, the Mitchells argue that the City [**3] is liable under common-law principles because the establishment and maintenance of public parks are proprietary functions.

Under common law, the establishment and maintenance of public parks were deemed proprietary functions. See Dancer v. City of Houston, 384 S.W.2d 340, 342 (Tex. 1964); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, 499 (1928). These common-law classifications have been redefined under the Texas Tort Claims Act. [HN1] Section 101.0215 of the Act now provides that the operation of parks and zoos is a governmental function. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13) (Vernon Supp. 1993).

The Mitchells argue that section 101.0215(a) does not reclassify all actions taken by a city regarding public parks. We refuse to adopt such a restrictive interpretation of the statute. To the contrary, the legislature specifically provided that [HN2] the proprietary functions of a municipality do not include those governmental activities listed in section 101.0215(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(c) (Vernon Supp. 1993).

We conclude that the claims against the City made the basis of this suit involve governmental functions. [**4] The Mitchells do not have any common-law cause of action against the City. We overrule the fourth point of error.

LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

The Mitchells next contend that the trial court erred in granting summary Judgment because they stated a cause of action within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They allege that the City is not immune from liability for negligent construction and maintenance of the gabion wall along the creek bank. See, e.g., City of Watauga v. Taylor, 752 S.W.2d 199, 202 (Tex. App.–Fort Worth 1988, no writ); Stanford v. State Dep’t of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex. App.–Dallas 1982, writ ref’d n.r.e.).

The City argues that these allegations involve the design, upgrading, and placement of an erosion control deuce. The City contends that it is immune from liability because these activities involve discretionary functions. See, e.g., City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.–El Paso 1990, writ denied); Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex. App.–Fort Worth 1989, writ denied). [**5]

1. Governmental Immunity

[HN3] A municipality performing a governmental function is afforded sovereign immunity [*745] unless immunity has been waived under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp. 1993). A governmental unit is liable for personal injuries proximately caused “by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 1986).

2. Discretionary Functions

The Texas Tort Claims Act creates certain exceptions to the waiver of governmental immunity. [HN4] Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

TEX. CIV. PRAC. & REM. CODE [**6] ANN. § 101.056 (Vernon 1986); see generally Lee M. Larkin, Comment, The “Policy Decision” Exemption of the Texas Tort Claims Act: State v. Terrell, 32 BAYLOR L. REV. 403 (1980) [hereinafter Larkin]. 2

2 The Larkin comment and several cases cited in this opinion involve the interpretation of the original Tort Claims Act contained in the Revised Civil Statutes. See TEX. REV. CIV. STAT. ANN. art. 6252-19 (Vernon 1970) (repealed 1985). The codification of the prior statute in the Civil Practice and Remedies Code did not effect any substantive change, and the language of the current version of the Texas Tort Claims Act is virtually identical to the prior statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 1.001 (Vernon Supp. 1993).

[HN5] The discretionary function exception to the waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. [**7] App.–Fort Worth 1991, no writ). Thus, a governmental entity is immune from liability if an injury results from the formulation of policy. However, a governmental unit is not immune if an injury is caused by the negligent implementation of that policy. See Terrell, 588 S.W.2d at 787-88; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex. App.–Austin 1982, writ ref’d n.r.e.); Larkin at 409. This distinction is often stated in terms of actions taken at the planning or policy-making level, which are immune, and actions taken at the subordinate or operational level, which are not immune. See McKinney, 814 S.W.2d at 866; Crossland, 781 S.W.2d at 433; Larkin at 410.

Design decisions made by the City are discretionary and therefore immune from liability. See Crossland, 781 S.W.2d at 433; Taylor, 752 S.W.2d at 202; Stanford, 635 S.W.2d at 582. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985); Taylor, 752 S.W.2d at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.–Beaumont [**8] 1986, writ ref’d n.r.e.). There is some conflict in the case law regarding the characterization of construction activities. Compare Smith, 687 S.W.2d at 303, and Ayoub, 787 S.W.2d at 554 (indicating that city is not immune from liability for construction and maintenance activities), with Taylor, 752 S.W.2d at 202 (indicating that planning and construction are immune activities).

We hold that construction activities are not discretionary functions. These activities involve the implementation of planning or policy-making decisions at the operational level. Therefore, the City is not immune from liability for claims based on the negligent construction and maintenance of the gabion wall.

STANDARD OF CARE

We next determine the standard of care owed by the City to park users. The City argues that it only owes the duty owed to a trespasser. The Mitchells contend that the City owes the same duty as [*746] owed to an invitee because they paid for use of the premises through the payment of taxes and because of the nature of the premises defect.

1. Statutes

[HN6] Section 101.022 of the Texas Tort Claims Act provides:

(a) If a claim arises from a premises [**9] defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (Vernon 1986) (emphasis added).

Section 75.002 of the Civil Practice and Remedies Code provides:

If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:

. . . .

(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises.

TEX. CIV PRAC. & REM. CODE ANN. § 75.002 (Vernon 1986) (emphasis added).

These two statutes are in apparent conflict in cases where the owner or occupier of the premises is a governmental unit that gives implied permission to persons to enter the property for recreational purposes. We must resolve this conflict by examining the [**10] case law and implementing well-settled rules of statutory construction.

2. Case Law

One court has held that the statutory predecessor to section 75.002, article 1b of the Revised Civil Statutes, should apply only if the injured party was a trespasser. It held the statute did not apply in a governmental tort liability context by simply stating that the persons who used the premises were not trespassers. Trinity River Auth. v. Williams, 659 S.W.2d 714, 720 (Tex. App.–Beaumont 1983), aff’d in part a rev’d in part on other grounds, 689 S.W.2d 883 (Tex. 1985); see TEX. REV. CIV. STAT. ANN. art. 1b, § l (Vernon 1969). It should be noted that the statute did not declare that recreational users are trespassers but merely provided that the duty owed to such users is the same as that owed to trespassers. Another court has held that section 75.002 did apply to governmental units. Noting that section 101.022(a) provides that the governmental entity owes “only the duty that a private person owes to a licensee on private property,” the court held that the section 75.002 duty standard applied to the State. Crossland, 781 S.W.2d at 547. Although the Crossland court [**11] purported to rely on section 101.022(a) in reaching its result, it ignored the fact that such provision states the governmental unit owes the duty that a private person owes to a licensee.

3. Statutory Analysis

We are not persuaded by the reasoning of either Williams or Crossland. Instead, we look to the legislative history of sections 75.002 and 101.022(a).

Article 1b of the Texas Revised Civil Statutes preceded section 75.002. See Act of May 29, 1965, 59th Leg., R.S., ch. 677, 1965 Tex. Gen. Laws 1551, 1551-52. Until this statute was codified in the Texas Civil Practice and Remedies Code, it was contained in the “General Provisions” of Title 1. See TEX. REV. CIV. STAT. ANN. art. 1b, § 1 (Vernon 1969). The statutory predecessor to section 101.022(a) of the Texas Tort Claims Act was article 6252-19, section 18(b) of the Texas Revised Civil Statutes. Article 6252-19 was first enacted in 1969, four years after the enactment of article 1b. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex. Gen. Laws 874, 878-79; TEX. REV. CIV. STAT. ANN. art. 6252-19, § 18(b) (Vernon 1970).

We conclude that section 75.002 and its predecessor, article [**12] 1b, were intended [*747] to be laws of general application. Section 101.022(a) and its predecessor, section 18(b) of article 6252-19, were specific laws applicable to governmental owners and occupiers of real property. [HN7] When two statutes conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 496, 198 S.W.2d 879, 881 (1947); see also TEX. GOV’T CODE ANN. § 311.026(b) (Vernon 1988); Carr v. Hunt, 651 S.W.2d 875, 882 (Tex. App.–Dallas 1983, writ ref’d n.r.e). Further, a more recent statutory enactment prevails over an earlier one. TEX. GOV’T CODE ANN. § 311.025(a) (Vernon 1988); State v. McKinney, 803 S.W.2d 374, 376 (Tex. App.–Houston [14th Dist.] 1990, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex. Civ. App.–Austin 1968, no writ).

4. Conclusion

We hold that section 101.022(a) controls over section 75.002. The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. [HN8] An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An [**13] owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition and the licensee does not. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).

EXCEPTIONS TO THE STANDARD OF CARE UNDER THE TORT CLAIMS ACT

The Mitchells argue that the duty owed by the City in this case is the same duty owed to an invitee. The Mitchells contend that the Texas Tort Claims Act creates a higher standard of care because: (1) they paid for use of the park through the payment of taxes; and (2) the steep drop-off created by the gabion wall constituted a special defect.

1. Taxpayer Status

The Mitchells first contend that their son was an invitee because they paid for use of the park through the payment of city taxes.

A similar argument was recently rejected by the San Antonio Court of Appeals in Garcia v. State, 817 S.W.2d 741 (Tex. App.–San Antonio 1991, writ denied). The plaintiff in Garcia sued the State of Texas under the Texas Tort Claims Act for damages sustained in a highway accident. He claimed invitee status because he paid for use of the highway through [**14] driver’s license fees and fuel taxes. The court held that the payment of fees and taxes does not confer invitee status for several reasons: (1) invitee status requires payment of a specific fee for entry onto and use of public premises; (2) the plaintiff’s contention would result in a lesser duty owed to nonresident users who did not pay taxes; and (3) the legislature did not intend such a broad grant of invitee status under section 101.022(a) of the Tort Claims Act. See Garcia, 817 S.W.2d at 743.

We adopt the reasoning of Garcia. We hold that [HN9] section 101.022(a) of the Tort Claims Act does not confer invitee status on park users based on the payment of taxes alone.

2. Special Defect

The Mitchells next contend that the City owed a higher standard of care because the steep drop-off created by the gabion wall constituted a special defect.

[HN10] A governmental unit has a duty to warn of or protect against special defects. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b) (Vernon 1986); see City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ ref’d n.r.e.). The duty to warn of a special defect is the same duty owed to an invitee. [**15] County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978). A special defect must be distinguished by some unusual quality outside the ordinary course of events. Crossland, 781 S.W.2d at 433; Sutton v. State Highway Dep’t, 549 S.W.2d 59, 61 (Tex. Civ. App.–Waco 1977, writ ref’d [*748] n.r.e.). A condition is a special defect only if it presents an unexpected and unusual danger to ordinary users of a roadway. State Dep’t of Highways & Pub. Transp. v. Kitchen, 1993 Tex. LEXIS 26, 36 Tex. Sup. Ct. J. 678, 679 (March 24, 1993); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238-39 n.3 (Tex. 1992) (op. on mot. for reh’g). A longstanding, routine, or permanent condition is not a special defect. Crossland, 781 S.W.2d at 433.

The Mitchells do not argue that the condition created by the gabion wall was unusual or outside the ordinary course of events. The summary judgment evidence establishes that the drop-off near the creek bank was longstanding and permanent. We hold that the premises defect made the basis of this claim was not a special defect.

MOTION FOR SUMMARY JUDGMENT

We now consider the summary judgment rendered in favor [**16] of the City in light of our holding that (1) construction and maintenance activities are not discretionary functions, and (2) the duty owed to park users is the same duty owed to a licensee.

1. Standard of Review

[HN11] Summary judgment may be rendered only if the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. Civ. P 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and defenses, not to deny a party its right to a full hearing on the merits of any real fact issue. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

[HN12] A defendant who moves for summary judgment must show that the plaintiff has no cause of action. Citizens First Nat’l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976). A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991), or (2) conclusively proving all elements of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. [**17] 1972).

[HN13] In reviewing a summary judgment, we must take all evidence favorable to the nonmovant as true in deciding whether a fact issue exists. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We must indulge every reasonable inference and resolve any doubt in favor of the nonmovant. Id.

2. Application of Law to the Facts

a. Negligent Construction and Maintenance

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They specifically pleaded that the City was negligent in constructing the wall for erosion control “in such a manner so as to result in a dangerous condition by creating a 15 to 25 foot steep cliff drop-off . . . when the City should have built the creek bank in a non-cliff manner.” The Mitchells also alleged that “construction and maintenance of a 15 to 25 foot drop-off behind a public restroom in a public park without a fence and Warning signs demonstrates a lack of due care and conscious indifference to the health, safety, and welfare of those affected by it.” 3

3 Gross negligence is defined as “such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(5) (Vernon Supp. 1993). Absent a special exception, the allegation of “lack of due care and conscious indifference” contained in the Mitchell’s petition is sufficient to plead the duty owed by the City to park users.

[**18] The City characterizes these allegations as defective design claims. It correctly notes that design claims are discretionary functions for which governmental entities are immune from liability. However, the City has failed to conclusively demonstrate that design defect is the sole basis for the Mitchells’ claim.

[*749] The City argues it is entitled to judgment as a matter of law because there is no specific pleading or proof that the premises were unreasonably dangerous or that it breached any duty owed to park users. The City misconstrues the burden of proof in a summary judgment proceeding. It is incumbent upon a defendant as movant to conclusively negate at least one essential element of the plaintiff’s case. Citizens First Nat’l Bank, 540 S.W.2d at 294. [HN14] A plaintiff as nonmovant is not required to establish his right to prevail. Ramirez v. Bagley Produce Co., 614 S.W.2d 582, 584 (Tex. Civ. App.–Corpus Christi 1981, no writ). A nonmovant has no duty or burden whatsoever in a summary judgment case until the movant establishes its right to a judgment as a matter of law. Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 232 (Tex. App.–Tyler 1982, [**19] writ ref’d n.r.e.).

The City presented no evidence of the original design of the gabion wall. The City did not show that the gabion wall was constructed and maintained pursuant to its original design and that the design of the wall was not otherwise modified. The City, therefore, failed to show that the Mitchells’ allegations were defective design claims and, thereby, failed to meet its burden of negating an essential element of the Mitchells’ case.

The Mitchells alleged that Ashley was injured when he fell from his bicycle down a steep cliff drop-off. The area was unfenced and located adjacent to the sidewalk. The Mitchells contend that this constitutes a dangerous condition. Ashley’s deposition testimony reflects that there was erosion of the ground underneath the sidewalk where he fell. 4 The City did not conclusively negate these allegations. The pleadings and deposition testimony are sufficient to create a fact issue regarding negligent and grossly negligent maintenance and construction.

4 Ashley’s testimony on this point is not very clear, but it is susceptible to the interpretation advanced by the Mitchells. In a summary judgment case, all inferences and doubts must he resolved in favor of the nonmovant. See Nixon, 690 S.W.2d at 548-49.

[**20] b. Failure to Warn or Make Safe

The Mitchells alleged that the City failed to warn of a dangerous condition in the area of the restrooms and sidewalk adjacent to the creek. They also claimed that the City failed to construct a fence or other barrier in the area or otherwise correct the dangerous condition.

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. The question of knowledge is a fact issue. See Keetch v. Kroger Co., 845 S.W.2d 262, 36 Tex. Sup. Ct. J. 273, 275 (December 2, 1992). An affidavit from a civil engineer states the drop-off should have been fenced off from the public area of the park. The engineer’s affidavit concludes that in failing to fence off or otherwise obstruct public movement into the area, “the City has failed to protect the [**21] public or give adequate warning to the public of a defect which created a dangerous condition.”

The City argues that Ashley must be charged with knowledge of any dangerous condition because the alleged premises defect was open and obvious. [HN15] The duty to warn or make safe applies when the licensee lacks actual knowledge. Payne v. State, 838 S.W.2d at 237; Tennison, 509 S.W.2d at 562. The City contends that the Mitchells have conceded that Ashley had actual knowledge of the condition of the premises. The response to the summary judgment motion recites that Ashley was aware of the existence of the creek. The response recites that Ashley, “being unaware . . . that the ground had eroded under the sidewalk next to this drop-off . . . fell over the edge and onto the rocks below.” [*750] The Mitchells never stated that Ashley was aware of the drop-off next to the sidewalk. The record does not conclusively establish that Ashley had actual knowledge of a dangerous condition. The lack of knowledge is an element of appellant’s claim that when disputed should be submitted to the fact finder. See Payne, 838 S.W.2d at 241.

SUMMARY

The establishment and maintenance [**22] of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.

We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence 5 in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition. 6 We sustain the Mitchell’s second and third points of error.

5 The duty owed to a licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.

6 The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.

We reverse [**23] the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

WILL BARBER

JUSTICE


Denver B-cycle Announces System Expansion from 53 to 83 Stations

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HeaderDenver B-cycle System Announces Expansion from 53 to 83 Stations; Fourth Season Starts Monday, March 18 With Three New Stations at Denver Zoo, Denver Museum of Nature and Science and Auraria Campus

Kaiser Permanente Continues as Founding Funder; Frontier Airlines Becomes “Official Airline” of Denver B-cycle

Denver B-cycle today announced that 30 new stations will be installed in the coming months, expanding its service to new neighborhoods beyond its current base and nearly doubling the square miles covered by the shared bicycle system. The Denver B-cycle fleet will grow to over 700.

Among the 30 new stations, three are already installed in high-visibility locations-The Denver Zoo, The Denver Museum of Nature and Science, and the Auraria Campus. All will be in service when the 2013 season opens on Monday, March 18.

Residents of the following neighborhoods will find one or more new stations near them: West Highland, Highland, Jefferson Park, Union Station, Five Points, North Capitol Hill, City Park West, City Park, Congress Park, Cheesman Park, Capitol Hill, Lincoln Park, Baker, Speer and Auraria. The new station locations have been selected specifically to complement high-use transit locations with most of them being located close to or within a mile of a bus or light rail stop.

“In just a few short years, the opening of Denver B-cycle’s season has become a rite of spring for the Mile High City-as welcome as the first tulip,” said Mayor Michael B. Hancock during a morning news conference at the Denver Museum of Nature and Science. “The expansion plans mean that the city is embracing this simple, sustainable and powerful concept and I applaud the many community partners and corporate sponsors who have come together to make this expansion possible. Riding a bike is better for our environment and better for our collective fitness and Denver B-cycle is playing a major role on both of these important issues.”

Mayor Hancock said Denver must remain a global leader as a bike-friendly city.

“As the Capitol of the least obese state in the nation, with more sunshine and a more navigable street network than any of our competitors, there is no reason why Denver can’t push to the top of national and global rankings for bike friendliness in the coming years,” said Mayor Hancock.

Partners & Sponsors

In addition to the expansion, Denver B-cycle announced the return of presenting sponsor Kaiser Permanente and a new, three-year commitment from Frontier Airlines, now the “official airline” of Denver B-cycle.

“We would not be where we are today, on the threshold of a major expansion and looking ahead to an exciting 2013 season, without the wide variety of community partners and businesses that recognize the importance of the shared bicycle network and the opportunity it represents to change the way we move around the city,” said Parry Burnap, executive director of Denver B-cycle. “We appreciate Kaiser Permanente, Frontier and all our sponsors and underwriters for their critical support.”

The Denver B-cycle program has grown by leaps and bounds and it’s exciting to see so many residents and visitors traveling around our beautiful city by bicycle, ” said Donna Lynne, DrPh, president of Kaiser Permanente Colorado. “We are proud to continue our support for this program as part of our commitment to improving community health.”

Frontier Airlines’ Daniel Shurz, senior vice president, commercial said the airline’s three-year commitment to Denver B-cycle is a natural fit. “We offer friendly baggage policies that encourage our passengers to bring their bicycles when they travel and we are committed to improving the quality of life in Denver on every level. We welcome the chance to be corporate partners with Denver B-cycle and believe the shared bicycle system is poised to grow for many years to come.”

Funding for New Stations

Twenty-seven of the new stations are possible because Denver Bike Sharing has been awarded capital funding through major two public grants matched by local foundations: Transportation, Community, and System Preservation Program (TCSP) awarded by the Federal Highway Administration, and Funding Advancements for Surface Transportation and Economic Recovery (FASTER) awarded by the Colorado Transportation Commission. Denver’s Anschutz Foundation and Gates Family Foundation provided the local match.

The two City Park stations were privately funded with donations from the Walton Family Foundation, the Piton Foundation, Encana, the Zoo and the Denver Museum of Nature and Science; the Auraria station was funded by the Auraria Campus Sustainable Campus Program.

About Denver Bike Sharing

Denver B-cycle is presented by Kaiser Permanente in association with a variety of community sponsors. Denver B-cycle is owned and operated by Denver Bike Sharing, a charitable, non-profit organization.

Denver Bike Sharing serves as a catalyst for a fundamental transformation in thinking and behavior by operating a bike sharing system in Denver to enhance mobility while promoting all aspects of sustainability: quality of life, equity, the environment, economic development, and public health.

To learn more about Denver Bike Sharing, the owner and operator of Denver B-cycle, visit denver.bcycle.com or call 303-825-3325.