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.

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