In a recent Texas appellate case, a city appealed the denial of its plea to the jurisdiction in a lawsuit involving an injured child. The case arose when a 13-year-old was swimming in the city’s public pool. A 17-year-old was on duty as a lifeguard. The pool had rules prohibiting horseplay, and the pool manager was aware of these rules.
While taking a break from his job, the lifeguard was double bouncing swimmers from the diving board, which meant that two people would stand on the diving board, and one would bounce while the other dove. The pool manager may have been aware of this practice but didn’t object unless the people involved were small children. On the day in question, she didn’t try to stop the lifeguard from double bouncing. When the 13-year-old joined in, he was hurt on his turn. He and the dividing board collided, causing his patella to snap, breaking a small bone, and dislocating his knee. He needed surgery and had to convalesce for six months.
The City argued that it had sovereign immunity from suit except as set forth under the Tort Claims Act. The law allows for a governmental unit to be liable for an injury legally caused by a wrongful act or omission of an employee acting within his scope of employment. There can also be governmental liability for misuse by employees of tangible personal property. However, landowner liability is limited when the landowner lets his land be used for recreation under Texas Civ. Practice & Remedies Code section 75.002.
The appellate court explained there was no dispute that the boy was hurt on premises operated by a governmental entity while being involved in recreational activities that are subject to the recreational use statute.
On appeal, the boy’s mother focused on the pool manager failing to supervise the lifeguard. The court explained that there was no evidence of greater involvement in the negligence. Without a separate immunity waiver, simply being a negligent supervisor was not using property. The liability of the city couldn’t be predicated on the actions of the pool manager.
The boy’s mother also claimed that the lifeguard’s actions were grossly negligent in bouncing her son in violation of the posted pool rules. The City claimed there wasn’t any evidence that raised a factual issue to support either of the basic components of the test for gross negligence. Specifically, there needed to be objective proof that double bouncing carried an extreme risk of harm, from the lifeguard’s perspective.
The lifeguard also had to have an actual and subjective awareness of the danger of double bouncing but have consciously proceeded, indifferent to the child’s safety. In this case, there was no evidence presented that the lifeguard knew that double bouncing was hazardous. He’d testified that it was his second summer as a lifeguard and that he’d previously worked at a different pool and was unaware of prior accidents or injuries. The appellate court found that governmental immunity was not waived, and it reversed the trial court’s order.
If you are injured on somebody else’s property, you should consult a Texas attorney with experience in premises liability cases to seek a favorable outcome. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.