Recently the appellate court heard Henry et al v. City of Angleton, an accelerated appeal from the trial court granting the city defendant’s plea to the jurisdiction. The case arose when a mother sued the city after her 11-year-old died from the complications of nearly drowning in a swimming pool that the city owned. The swimming pool was at a recreation center that consisted of a fitness facility, gym, and meeting rooms, in addition to the pool.
The pool was both an indoor and outdoor pool and had slides and a lazy river. The mother had taken her four kids to the pool to swim. The 11-year-old was seen lying face down in the water at some point. Lifeguards pulled her out and tried to resuscitate her. She died seven days later from complications of nearly drowning. The video showed her face-down for seven minutes before the lifeguard acted.
The mother sued on behalf of her daughter’s estate, as next friend of her three other children, and as herself individually to recover wrongful death survival and bystander damages. She argued that the City’s operation of the swimming pool was a “proprietary function” because it included amusement features like slides and the lazy river. She also sued for negligence, gross negligence, and premises defect.
The trial court ordered her to re-plead, including specific facts that would show the city’s immunity from suit was waived by the Texas Tort Claims Act. In her amended petition, the mother alleged that the pool’s design was an unreasonably dangerous condition and that the city had failed to install elevated lifeguard chairs that were required by code.
The city again sought dismissal, arguing that the mother hadn’t alleged a cause of action that would waive its immunity from suit. The mother responded with a transcript of the city manager and picture of the lifeguard chair. Her suit was dismissed with prejudice.
The appellate court explained that a plea to the jurisdiction based on governmental immunity challenges the trial court’s subject matter jurisdiction. The standard for a plea to jurisdiction mirrors the standard for a motion for summary judgment.
The mother challenged the trial court’s order on two bases: the trial court had made a mistake in concluding the operation of the pool was a governmental rather than proprietary function, and the trial court had made a mistake in concluding that she failed to allege sufficient facts to assert a waiver of immunity for use of personal property and premises liability.
The appellate court explained that a city’s immunity from suit depends on whether its acts are characterized as “governmental” functions or “proprietary” functions. The city is immune for torts that are committed when it is acting in accord with its governmental functions, but not when it is performing a proprietary function. Recreational facilities including swimming pools are designated as a governmental function for torts claims under section 101.0215 of the Texas Tort Claims Act. On the other hand, “amusements” owned by a city are proprietary. The appellate court explained that because swimming pools are expressly designated as governmental, they are not proprietary even though there were added features that distinguished the city’s pool from a generic pool.
The court also dismissed the plaintiff’s argument that there should have been elevated lifeguard chairs because she failed to allege how these chairs were an instrumentality of her daughter’s injury. It also rejected her argument that the injury and death were caused by a premise defect, reasoning that to make this argument successfully she would have had to allege sufficient facts to support a gross negligence claim, not mere negligence. Gross negligence requires a plaintiff to show that an act or omission involved an extreme degree of risk, and the actor should have had actual awareness of the risk and proceeded with conscious indifference. It affirmed the trial court’s judgment.
If you or a loved one is injured in a swimming pool accident, it’s important to retain attorneys with experience in these challenging cases. The experienced San Antonio swimming pool accident attorneys at Carabin Shaw may be able to help. Call our office for more information at 1-800-862-1260.