On appeal from The 48th District Court Tarrant County, Texas

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Date: 01-23-2022

Case Style:

City of Arlington v. Monique Ukpong

Case Number: 02-21-00078-CV

Judge: Dana Womack

Court:

Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from The 48th District Court Tarrant County, Texas

Plaintiff's Attorney:


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Defendant's Attorney: Greg Adler
Randall E. Turner

Description:

Fort Worth, Texas - Premises-Premises-Liability lawyer represented Appellant with a premises-liability action.



River Legacy Park covers 1,300 acres in Arlington. Within the park, a 7.5-mile
concrete trail winds through forested areas. On January 21, 2020, Ukpong went
running on the park’s trail, as she had done “many times before.” That day, while she
was running on the trail, a dead hackberry tree next to the trail fell on her, causing her
injury. Ukpong filed a lawsuit against the City alleging premises liability. Two photos
of the downed tree were included with Ukpong’s petition. They show the downed
tree lying across the running trail, and one of the photos shows the tree-filled area
3
surrounding the running trail. In her petition, Ukpong alleged that the City had
waived its immunity under the Tort Claims Act and the Recreational Use Statute
because her injuries were caused by the City’s gross negligence.
The City answered and filed a plea to the jurisdiction. Citing State v. Shumake,
199 S.W.3d 279 (Tex. 2006), and City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009),
the City argued that it did not have a duty to warn or protect Ukpong, a recreational
user, from the dead tree, a natural condition on its property. The City argued that
because it owed no duty to Ukpong, it retained its governmental immunity from suit,
and thus, the trial court lacked subject-matter jurisdiction. The City also argued that
even if the trial court had jurisdiction over the suit, its jurisdiction was limited to
$250,000 in damages under the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.023(c).
In response, Ukpong argued that the City should have been aware of the
danger posed by the dead tree.1 Ukpong attached to her response deposition
testimony from Martin Sanchez, a park supervisor for the City, who stated that park
employees regularly inspected the trail, that they cut down dead trees standing next to
the trail, and that a dead tree leaning toward the trail presents a dangerous condition.
Ukpong also attached to her response a declaration from her expert arborist, John
1
In response to the City’s argument that the trial court’s jurisdiction was limited
to $250,000 in damages, Ukpong simply stipulated, “Under the Texas Tort Claims
Act, the City’s liability in this case is capped at $250,000.”
4
Tomlinson. When discussing the dead tree and whether it created an obviously
dangerous condition, Tomlinson stated,
It is my professional opinion that this tree failed and fell onto the trail
due to the weakness that occurred as a result of the decay fungi
decomposing the integrity of the wood, and the lean of the tree. The
tree had been dead for several years. It would have been obvious for
several years to anyone looking at the trees along the trail that the tree
was dead. . . . The location of the tree was such that a person on the
trail who was looking at the trees along the trail would have seen it
because of its close proximity to the trail and the fact that there were no
bushes or anything else between the tree and the trail that would have
obstructed the view of the tree by a person on the trail. It would have
also been obvious to anyone who looked at the tree from the trail that,
because of its size, its short distance from the trail, and the fact it was
leaning toward the trail, it would eventually fall onto the trail.
Following a hearing, the trial court denied the City’s plea to the jurisdiction.
This interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (allowing interlocutory appeal from an order denying a plea to the
jurisdiction by a governmental unit).
III. DISCUSSION
In its first issue, the City argues that it did not owe Ukpong a duty to warn or
protect her from the dead tree, a natural condition, and that, therefore, the trial court
erred by denying the City’s plea to the jurisdiction.
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack
of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
A plea to the jurisdiction may be utilized to challenge whether the plaintiff has met
5
her burden of alleging jurisdictional facts or to challenge the existence of jurisdictional
facts. See Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex.
2004). Whether a trial court has subject-matter jurisdiction is a question of law. State
v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). We therefore review a trial court’s ruling
on a plea to the jurisdiction de novo. Id.
In deciding a plea to the jurisdiction, a court may not weigh the merits of a
plaintiff’s case but must consider only the plaintiff’s pleadings and the evidence
pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). When
considering a trial court’s order on a plea to the jurisdiction, we construe the pleadings
in the plaintiff’s favor and look to the plaintiff’s intent. Heckman v. Williamson Cnty.,
369 S.W.3d 137, 150 (Tex. 2012); Brown, 80 S.W.3d at 555. A court must grant the
plea to the jurisdiction if the plaintiff’s pleadings or undisputed evidence affirmatively
negates the existence of jurisdiction. Heckman, 369 S.W.3d at 150; Miranda,
133 S.W.3d at 227.
B. The Law
Sovereign immunity deprives a trial court of jurisdiction for lawsuits in which
the State has been sued unless the State consents to the suit. Miranda, 133 S.W.3d at
224. Political subdivisions of the State, including cities, are entitled to such
immunity—referred to as “governmental immunity”—unless it has been waived.
6
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
Under the Tort Claims Act, the Legislature has provided a limited waiver of
governmental immunity from suit for certain tort claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.025. Governmental entities are liable under the Tort Claims Act for
“personal injury . . . 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.” Id. § 101.021(2). The Tort Claims Act also provides that “if
a claim arises from a premise 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,” in which case the duty owed is that owed
to an invitee. Id. § 101.022(a); Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69–70 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied).
When property is open to the public for “recreation,” however, the
Recreational Use Statute further limits a governmental unit’s duty by classifying
recreational users as akin to trespassers and by limiting the governmental unit’s
liability for premises defects to claims involving gross negligence, malicious intent, or
bad faith.2
Tex. Civ. Prac. & Rem. Code Ann. § 75.002. As used in the Recreational
Use Statute, “gross negligence” has both an objective and a subjective component:
2Ukpong does not allege that the City acted maliciously or in bad faith; rather,
Ukpong alleges only that the City was grossly negligent.
7
(1) viewed objectively from the standpoint of the actor at the time of its occurrence,
the act or omission involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and (2) the actor has actual, subjective
awareness of the risk involved, but nevertheless proceeds with conscious indifference
to the rights, safety, or welfare of others. Suarez v. City of Tex. City, 465 S.W.3d 623,
633 (Tex. 2015). And, as with negligence actions, “a defendant may be liable for gross
negligence only to the extent that it owed the plaintiff a legal duty.” Kirwan,
298 S.W.3d at 623.
In Shumake, the Texas Supreme Court considered the effect of the Recreational
Use Statute in a premises-liability claim involving the death of the Shumakes’ nineyear-old daughter, who had drowned while swimming and tubing in the Blanco River.
199 S.W.3d at 281. The Shumakes had alleged that their daughter was “sucked
underwater by a powerful undertow and trapped in a man-made culvert that diverted
the water under a nearby park road,” and they further alleged that when the Blanco
River’s water was high, the man-made culvert was concealed, creating a dangerous
undertow that the Texas Parks and Wildlife Department knew about. Id. In analyzing
whether the Department owed their daughter a duty to warn or protect her from this
dangerous condition, the Texas Supreme Court stated that “[a] landowner has no duty
to warn or protect trespassers from obvious defects or conditions.” Id. at 288. Thus,
a property owner “may assume that the recreational user needs no warning to
appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or
8
even a concealed rattlesnake.” Id. The court noted, however, that “a landowner can
be liable for gross negligence in creating a condition that a recreational user would not
reasonably expect to encounter on the property in the course of the permitted use.”
Id. With that legal framework in mind, the court concluded that the Shumakes’
pleadings sufficiently stated a premises-liability claim under the Recreational Use
Statute. Id. In making that conclusion, the court reiterated, “[W]e do not hold, or
even imply, that a landowner may be grossly negligent for failing to warn of the
inherent dangers of nature.” Id.
In Kirwan, the Texas Supreme Court considered a premises-liability claim
involving the death of a man who was sitting on top of a naturally occurring cliff in
Cameron Park when the “solid rock ground collapsed underneath him, causing him to
fall approximately sixty feet to his death.” 298 S.W.3d at 620. At the outset of its
analysis, the court noted that its facts differed from those in Shumake because while
“[t]he condition in Shumake was not a naturally occurring one,” the cliff at issue in
Kirwan was a natural condition. Id. at 622. The court further explained that while in
Shumake it had provided examples of “open and obvious conditions which happen to
be naturally occurring,” the condition in Kirwan, while natural, was not open and
obvious. Id. The court was thus called to address “whether a duty arises with respect
to natural conditions, whether they be open and obvious or not.” Id. at 623. In
considering this question of duty, the court stated,
9
Nature is full of risks and it is certainly foreseeable that human
interaction with nature may lead to injuries and possibly even death.
Our state parks and lands are covered by numerous potentially
dangerous natural conditions: cliffs; caves; waterfalls; swamps and other
wetlands; mountains and canyons; surf; and various animals and
creatures. Landowners likely know of the types of animals and natural
formations on their property, and will no doubt, as a general rule,
foresee the risks which will accompany human interaction with these
natural conditions. Reasonable recreational users who choose to visit a
property for recreational purposes will also have, or in the very least
should have, awareness of the inherent risks involved in interacting with
nature. Therefore, the risks inherent in a natural condition will ordinarily
be foreseeable not only to the landowner but to the recreational user as
well. This is especially true where a natural condition is of the sort one
would reasonably expect to find on a property.
A cliff, like the one here, is the sort of dangerous natural
condition that both a landowner and recreational user could foresee
would pose a risk.
Id. at 624 (citations omitted).
The court next considered the public-policy implications of imposing a duty to
warn or protect recreational users from natural conditions. Id. at 625–26. The court
stated that “[i]t is generally unreasonable and unduly burdensome to ask a landowner
to seek out every naturally occurring condition that might be dangerous and then
warn of the condition or make it safe.” Id. at 625. The court noted that “[i]n most
circumstances, the magnitude of the burden in requiring a landowner to make
perfectly safe, or post signs warning of, every potentially dangerous naturally
occurring condition on his property would be immense” and that “the magnitude of
this sort of burden will generally outweigh the foreseeability of the risk of harm where
the condition is naturally occurring.” Id. at 625–26. Bearing that in mind, the court
10
held that “a landowner, lessee, or occupant, under the [R]ecreational [U]se [S]tatute,
does not generally owe a duty to others to protect or warn against the dangers of
natural conditions on the land, and therefore may not ordinarily be held to have been
grossly negligent for failing to have done so.” Id. at 626. The court thus held that the
City of Waco did not owe a duty to warn or protect the man who fell from the
dangers of the naturally occurring cliff. Id. at 628. The court went on to note that
even assuming that a duty was owed, the City of Waco was not grossly negligent
under the facts of the case. Id. at 627–28.
C. Application of the Law to the Facts
Here, the parties agree that the City owned and operated River Legacy Park at
the time of Ukpong’s injury and that she was a recreational user of the park at that
time. Therefore, the City did not owe Ukpong a duty to protect her from obvious
defects or conditions and generally did not owe a duty to warn or protect her from
the dangers of natural conditions in the park, whether obvious or not. See Kirwan,
298 S.W.3d at 626; Shumake, 199 S.W.3d at 288.
3
3
In her brief, Ukpong argues that Miranda, rather than Shumake and Kirwan,
“contains the proper analysis for the decision of this case.” Miranda is distinguishable
for several reasons. First, and as noted by the Texas Supreme Court in Kirwan, the
court “did not directly address the duty question in Miranda.” Kirwan, 298 S.W.3d at
626 (citing Miranda, 133 S.W.3d at 221). Here, our analysis turns on whether the City
owed a duty to warn or protect Ukpong from the dead tree. Second, in Miranda, the
plaintiffs asked a park ranger to recommend a safe campsite, and after the plaintiffs
stood in the recommended campsite, a falling tree branch struck one of them.
133 S.W.3d at 221. The Texas Supreme Court evaluated whether pleading those
specific facts was sufficient to state a claim for gross negligence for which immunity
11
As a preliminary matter, we note that both Ukpong’s pleadings and evidence
establish that the dead tree was an obvious condition. Ukpong’s petition states that
the dead tree “had large areas of missing bark, countless insect bore holes, various
types of fungus growing on it, no branches or leaves, and no canopy, all of which are
clear and obvious signs that the tree was dead.” And Ukpong’s expert arborist,
Tomlinson, averred that “[i]t would have been obvious for several years to anyone
looking at the trees along the trail that the tree was dead” and that “[i]t would have
also been obvious to anyone who looked at the tree from the trail that, because of its
size, its short distance from the trail, and the fact it was leaning toward the trail, it
would eventually fall onto the trail.” Thus, under Shumake, the City had no duty to
warn Ukpong of the dead tree because it was an obvious condition.
4
See 199 S.W.3d
at 288.
was waived. Id. at 230. Here, there is nothing in the record to indicate that the City
made any affirmative representation that Ukpong would be safe while running on the
trail. And, in any event, we would only need to weigh such evidence of the City’s
gross negligence if the City owed Ukpong a duty. See Kirwan, 298 S.W.3d at 620 (“But
if the law imposes no duty upon the landowner with respect to the allegedly
dangerous condition, then this burden of proof does not come into play.”). Third, in
Miranda, only a plurality of the Texas Supreme Court joined in the portion of the
opinion holding that the plaintiffs had alleged sufficient facts for a gross-negligence
claim under the Recreational Use Statute. Id. at 626–27 (citing Miranda, 133 S.W.3d at
220, 229–31).
4Without citing any portion of the record, Ukpong maintains that “[t]he dead
tree in this case would not have been obvious to a trail-runner.” Apart from belying
the evidence from her own expert, we do not think that a recreational user should be
owed some additional duty merely because she fails to appreciate the obvious
conditions in her surroundings. See Kirwan, 298 S.W.3d at 624 (“Reasonable
12
Even if the dead tree was not an obvious condition, it was a natural condition,5
and thus, under Kirwan, the City generally did not owe a duty to warn or protect her
from it. See Kirwan, 298 S.W.3d at 626. In attempting to get around Kirwan, Ukpong
emphasizes that the City allegedly knew or should have known about the dangers of
the dead tree. But, as noted in Kirwan, “[n]ature is full of risks and it is certainly
foreseeable that human interaction with nature may lead to injuries and possibly even
death,” and “[o]ur state parks and lands are covered by numerous potentially
dangerous natural conditions . . . .” Id. at 624. Like the cliff in Kirwan, the dead tree
here “is the sort of dangerous natural condition that both a landowner and
recreational user could foresee would pose a risk,” and just as the Texas Supreme
Court held that the City of Waco did not owe a duty to warn or protect recreational
users from the cliff, we hold that the City did not owe a duty to warn or protect
Ukpong from the dead tree that fell on her.
6
Id. at 624, 628.
recreational users who choose to visit a property for recreational purposes will also
have, or in the very least should have, awareness of the inherent risks involved in
interacting with nature.”).
5
In her responses to the City’s requests for admission, Ukpong admitted that
the tree was not “artificial” and that the “existence and presence” of the tree
“occurred naturally.” The fact that the dead tree was a natural condition can also be
seen in Tomlinson’s declaration, which describes “white rot wood fungi” in the dead
tree and which states that “[t]his can be thought of a[s] nature’s way of recycling
waste.” Moreover, Sanchez, a park supervisor for the City, testified that “[o]bviously,
trees are naturally occurring in a forest.”
6
In her brief, Ukpong argues that by inspecting the trail and by cutting down
dead trees that presented potential hazards, the City assumed the duty to do those
13
Moreover, even if the City did owe Ukpong a duty, and even if we assume that
the City knew of an “extreme degree of risk” posed by the dead tree, we fail to see
how the City showed “conscious indifference to the rights, safety, or welfare of
others” that would be required for a finding of gross negligence. See Suarez,
465 S.W.3d at 627; see also Kirwan, 298 S.W.3d at 627 (“Even assuming that the City
owed McGehee a duty . . . we fail to see how the City showed ‘conscious indifference
to the rights, safety, or welfare of others.’”).
tasks with ordinary care and was negligent in its performance of those tasks. Ukpong
cites several cases to support her proposition. See Nall v. Plunkett, 404 S.W.3d 552
(Tex. 2013); Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000); Wilson v. Tex. Parks
and Wildlife Dep’t, 8 S.W.3d 634 (Tex. 1999); Osuna v. S. Pac. R.R., 641 S.W.2d 229
(Tex. 1982); Fox v. Dall. Hotel Co., 240 S.W. 517 (Tex. 1922), overruled on other grounds by
Burk Royalty Co. v. Walls, 616 S.W.2d 911, 925 (Tex. 1981); Little v. Delta Steel, Inc.,
409 S.W.3d 704 (Tex. App.—Fort Worth 2013, no pet.). Those cases are easily
distinguishable because none of them involved the Recreational Use Statute—a
statute placing limits on the duties owed by a governmental unit to a recreational user.
Moreover, five of the six cases cited by Ukpong did not involve an injury stemming
from a natural condition on government property. See Nall, 404 S.W.3d at 554
(involving an injury caused by a vehicle); Torrington Co., 46 S.W.3d at 833 (involving an
injury caused by a helicopter crash); Osuna, 641 S.W.2d at 229 (involving an injury
caused by a collision between a vehicle and a train); Fox, 240 S.W. at 518 (involving an
injury caused by an elevator); Little, 409 S.W.3d at 706 (involving an injury cased by a
steel plate dislodging from a crane). The one case that did involve an injury from a
natural condition on government property, Wilson, is distinguishable because in that
case—a case involving two brothers who drowned on a flooded stretch of the
Pedernales River—the plaintiffs contended that “by putting up signs about its flood
warning systems, the Department encouraged visitors’ reliance that the park rangers
were monitoring the river and would provide adequate warning if dangerous
conditions developed.” 8 S.W.3d at 635–36. Here, Ukpong’s complaint is the
opposite—she complains that the City did not warn her to be on the lookout for
falling trees.
14
Having determined that the City did not owe a duty to warn or protect Ukpong
from the dead tree because it was an obvious condition and because it was a natural
condition—and having determined that even assuming the City did owe a duty to
Ukpong, the City was not grossly negligent—we hold that the pleadings and evidence
do not rise to the necessary level to waive the City’s immunity from liability.
Accordingly, the trial court erred by denying the City’s plea to the jurisdiction. We
sustain the City’s first issue.7

Outcome: Having sustained the City’s first issue and needing not reach its second issue,
we reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment dismissing Ukpong’s claims.

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