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City of Lubbock v. Rule

To state a viable cause of action within the scope of '101.021(2) of the Tort Claims Act when the injury involves realty (and appurtenances thereto) used for recreational purposes, the claimant must allege facts illustrating that injury or death arose from the willful, wanton or grossly negligent conduct of the entity.

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In this interlocutory proceeding, the City of Lubbock appeals from an order denying its motion to dismiss for want of jurisdiction. The two issues before us involve whether the trial court erred in denying the motion and in refusing to receive live evidence proffered by the city at the hearing on the motion. For the reasons which follow, we reverse.

Background

Ruede Don and Deborah Rule sued the City to recompense damages allegedly suffered by their 20 month old daughter, G.R. The child purportedly suffered burns to her hands while attempting to climb upon a slide. The slide was located in a park or playground owned and operated by the City. Upon being served with suit, the City joined issue and urged that it was immune from suit, among other things. It also moved to dismiss the suit for want of jurisdiction. Accompanying the motion was another motion through which it sought summary judgment. Though the record does not reflect that the trial court acted upon the latter motion, it does illustrate that the court denied the former. And, it is from the order denying the motion to dismiss that the city appeals.

 
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