University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit

Court looks at whether a release will defeat a claim for gross negligence but does not decide the case on that issue. Case is confusing, because court discussed defenses that were not applicable. Plaintiff waived all but the gross negligence claims.

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

State: Texas, Court of Appeals

Plaintiff: Rolando Benavidez

Defendant: The University of Texas — Pan American

Plaintiff Claims: failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb, Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA (University of Texas– Pan American), negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.

Defendant Defenses: Release, Recreational Use Statute and the Texas Tort Claims Act

Holding: For the defendant

Year: 2014

The plaintiff was climbing at the university’s climbing wall. He signed a release to climb. On the back of the release was a set of rules about climbing that the plaintiff also had to sign. i.e. Two legal documents on one sheet of paper.

The plaintiff argued the rules on the backside of the agreement were part of the contract. Because the climbing wall had not followed the rules, the release was no longer valid and the defendant had acted negligently and gross negligently.

While climbing the plaintiff reached the top of the wall and was told to lean back while he was lowered. The plaintiff fell 33’ suffering injuries. Based on witness statements of other employees of the wall, it appeared the figure 8 (knot) used to tie the plaintiff’s harness to the rope had been tied incorrectly.

The trial court dismissed the case, awarded costs against the plaintiff based on the Texas Tort Claims Act, and the plaintiff appealed.

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

The court first looked at the Texas Tort Claim Act and its application to the case.

As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.”

The court then brought in the Texas Recreational Use Statute. Under the Texas Recreational Use Statute, a state landowner (governmental entity) can only be liable for gross negligence.

When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence.

The university is state land, and the climbing wall is on the land. It was used for recreation and probably as a student for free, although this was not discussed in the case. Consequently, the Texas Recreational Use Act protected the university from negligence claims.

With the ordinary negligence claims gone, the court turned to the gross negligence claims and looked at the release. Under Texas law to be valid, a release must:

(1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence.

The burden is on the defendant, the person relying on the defense of release, to prove the validity of the release and the requirements set forth by the court.

The court then looked at whether the release then barred the claim for gross negligence. The court reviewed several Texas cases; however, the court did not decide whether a release in this situation barred a claim for gross negligence. The court found the gross negligence claim was not raised on the appeal.

For a legal argument to be argued in the court, there are two basic components that must be met before any argument can be made. The argument must be made in the trial court and in many cases an objection to the court’s ruling made. Second the issue must be argued in the statements (pleadings) at the appellate court also. Here, although argued in the trial court the issue was not argued or probably raised at the appellate court.

The court then went back to the release to see if the release was still valid. The plaintiff claimed the defendant violated the release because it failed to follow the rules on the reverse side of the release. Because the rules were on the document called the release the plaintiff argued they were part of the release. Those rules set forth how the climbers and allegedly the gym was supposed to act. One of the rules required all knots to be checked by specific persons at the gym, which was not done in this case, and allegedly not done at all until after the plaintiff’s injury.

Arguing the rules and release were one document, the plaintiff stated the failure to follow the rules was a material breach of the contract. A material breach or avoidance of the contract voids it.

Under Texas law, a release is a contract and is subject to avoidance just like any other contract. When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. This court is bound to read all parts of a contract together to ascertain the agreement of the parties. The contract must be considered as a whole. Moreover, each part of the contract should be given full effect.

A prior material breach one that occurs before the execution of the contract discharges the parties from the contractual obligations. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Execution of the contract means the contract by its terms has not been completed. Meaning there is part so the contract that have not been complied with by one or more parties. Here the failure of the gym to check the plaintiff’s knot was prior to the climbing of the plaintiff. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Under Texas law for a court to determine if a prior material breach to occur the court must determine the following:

(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

This court also examined whether or not checking the knot was a condition precedent. A condition precedent requires one thing to occur before the rest of the contract must be done.

Alternatively, a condition precedent is an event that must occur or act that must be per-formed before rights can accrue to enforce an obligation. Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way.

However, the court found that the language of the safety rules did not relate to the language of the release. The safety rules, overall, were simply rules the plaintiff was to follow and was not part of the contract. “…the safety policy’s side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA…

However, reading the safety policies document as a whole, we find that the language of the agreement placed the sole responsibility on the climber to ensure that the procedures in the safety polices were followed.

Because we find that, by its clear language, the waiver and release form did not express the intent of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract.

The remaining issues before the court were dismissed because without a negligence claim, they were also decided. The appellate court affirmed the trial court’s dismissal of the plaintiff’s claims and the award of costs under the Texas rules of civil procedure.

Costs are not attorney fees. Costs are the cost of going to trial, the filing fee, witness fees, possibly deposition costs, etc. Most states allow the winning side to recover costs of a trial.

So Now What?

This was close. It was obvious by the amount of time the court spend discussing the issue of a material breach that the language on the back of the release was an issue for the court. Always remember a release is a contract. You don’t buy a house with a laundry list on the back. You don’t rent an apartment with state driving laws on the back. Releases are contracts, and you need to make sure there is no issue that the document you are having your guests sign. A Release must be a contract and nothing else.

The university, because it was a state college was subject to broader and more protective statutes that provided defenses, than a private commercial gym or a private college. A state’s tort claims act provides a broad range for protection.

Whether or not a state’s recreational use statute provides protection for governmental agencies is different in each state. If you are in this position, you should check with counsel to see what protection any state statutes may provide.

What do you think? Leave a comment.

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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