City of Missouri City v. Allanias Hampton and Damita Hampton, Individually as Next Friend to Alaina Hampton, Minor

Reversed and Rendered and Memorandum Opinion filed July 23, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00111-CV

CITY OF MISSOURI CITY, Appellant
V.
ALLANIAS HAMPTON AND DAMITA HAMPTON, INDIVIDUALLY AS
NEXT OF FRIEND TO ALAINA HAMPTON, MINOR, Appellees

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 21-DCV-287388

MEMORANDUM OPINION

Appellant City of Missouri City appeals from the trial court’s denial of its
plea to the jurisdiction and no evidence summary judgment motion on jurisdiction.
In twelve issues, Missouri City contends that the trial court erred in denying its
plea and motion. We reverse the ruling of the trial court and render judgment
dismissing all claims against Missouri City.
BACKGROUND

Appellees Allanias and Damita Hampton, both individually and as next of
friend to Alaina Hampton, brought suit against Missouri City for an injury Alaina
incurred on a softball field at a public park. 1

Alaina played on a softball team. The team organized a scrimmage against
another team. The scrimmage was played on a softball field in a public park in
Missouri City that is owned and maintained by Missouri City. During the
scrimmage, while playing shortstop Alaina dove for a ball along the third base line,
in the foul area. In doing so Alaina collided with a metal fence post. Part of the
fence had a small metal piece, part of a gate to the field, that was projecting into
the foul area of the field. When Alaina collided with the fence, this metal piece
caused a laceration on her face requiring cosmetic surgery to correct. Alaina
“suffered a deep laceration above her eye and a fractured skull, nose, and cheek
bone” from the collision. Because of her injury she missed much of her eleventh-
grade softball season.

Importantly, the scrimmage occurred in September 2020, during the
COVID-19 pandemic. Missouri City was not issuing permits for competitive
games on its fields, including the field where Alaina was injured. However, the
field was unlocked and remained open. Alaina’s team did not apply for, or receive,
a permit to use the field. Missouri City did not organize the game, oversee the
game, or have any knowledge of the game at the time it was played. Missouri City
did not charge or accept payment for the game or the use of the field.

1
At the time appellees filed the lawsuit Alaina was a minor and has since reached the age
of majority. Alaina’s parents initially brought the lawsuit on her behalf and also asserted
bystander claims against Missouri City.

2
Prior to this lawsuit, Missouri City had received no complaints of the
condition on the fence to the field or any like it; no similar accident has ever been
reported. However, the field had not been inspected since December 2019, or
approximately nine months prior to the accident. The Parks Director testified that
even if they had inspected the field prior to the accident, it is unlikely they would
have noticed the bent metal bar because they generally look at the condition of the
fencing as a whole.

Appellees filed suit asserting claims of “general negligence/premises
liability” and “negligence/premise liability of special defect” against Missouri City
as well as bystander claims based on witnessing Alaina’s accident. Appellees
alleged that they brought their claims against Missouri City under the Texas Torts
Claims Act. Missouri City filed a plea to the jurisdiction and an “immunity-based”
no evidence motion for summary judgment. The trial court denied Missouri City’s
plea to the jurisdiction and no evidence motion for summary judgment based on a
determination that Missouri City waived its governmental immunity under the
Torts Claims Act. See Tex. Civ. Prac. & Rem. Code §§ 101.001–.109. Missouri
City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code §
51.014(a)(8).

STANDARD OF REVIEW

Generally, the State of Texas and its agencies retain sovereign immunity
from suit unless the Legislature clearly and unambiguously waives it. Univ. of
Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010). “Political subdivisions
of the state, including cities, are entitled to such immunity—referred to as
governmental immunity––unless it has been waived.” Reata Const. Corp. v. City
of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The Legislature has waived

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governmental entities’ immunity from certain claims by means of the Tort Claims
Act. See Tex. Civ. Prac. & Rem. Code §§ 101.001–.109.

“Whether a court has subject matter jurisdiction is a question of law,
properly asserted in a plea to the jurisdiction.” Sampson v. Univ. of Tex. at Austin,
500 S.W.3d 380, 384 (Tex. 2016). “Whether a pleader has alleged facts that
affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of
law reviewed de novo.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). Generally, the standard mirrors that of summary judgment.
Sampson, 500 S.W.3d at 384. “When the evidence submitted to support the plea
implicates the merits of the case, we take as true all evidence favorable to the
plaintiff, indulging every reasonable inference and resolving any doubts in the
plaintiff’s favor.” Id.

TORT CLAIMS ACT

The Tort Claims Act waives immunity for personal injuries caused by a
condition on real property. Tex. Civ. Prac. & Rem. Code §§ 101.021(2),
101.025(a). If the claim arises from a premises defect, the government’s duty is
generally limited to “the duty that a private person owes to a licensee on private
property.” Id. § 101.022(a), (c). But for special defects, the government owes a
duty to warn that is the same as a private landowner to an invitee. Christ v. Tex.
Dep’t of Transp., 664 S.W.3d 82, 86–87 (Tex. 2023). Whether a condition is a
special defect or an ordinary premises defect is a question of law. State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).

A “special defect” is “a subset of premises defects likened to excavations or
obstructions on roadways.” Christ, 664 S.W.3d at 86. “The Legislature does not
define special defect but likens it to conditions ‘such as excavations or obstructions
on highways, roads, or streets.’” The Univ. of Tex. at Austin v. Hayes, 327 S.W.3d
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113, 116 (Tex. 2010) (quoting Tex. Civ. Prac. & Rem. Code § 101.022(b)). The
statutory examples of special defects are not exclusive. City of El Paso v. Chacon,
148 S.W.3d 417, 422 (Tex. App.—El Paso 2004, pet. denied). However, “[t]he
class of special defects contemplated by the statute is narrow.” Kownslar v. City of
Houston, 654 S.W.3d 472, 476 (Tex. App.—Houston [14th Dist.] 2022, no pet.);
see also Harris Cnty. v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978) (“The statutes
provide an understanding of the kinds of dangerous conditions against which the
legislature intended to protect the public.”). “[C]onditions can be special defects
‘only if they pose a threat to the ordinary users of a particular roadway.’” Hayes,
327 S.W.3d at 116 (quoting Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 (Tex.
2009)).

To prove a claim for premises liability, the plaintiff must establish her status
at the time of the injury as invitee, licensee, or trespasser because “the duty an
owner or occupier of property owes someone on the property depends on that
person’s status.” Catholic Diocese of El Paso v. Porter, 622 S.W.3d 824, 829
(Tex. 2021). A plaintiff’s status is a question of law but may be a question of fact
when facts relevant to the legal standard are disputed. Id. Status is determined
based on the circumstances at the time and place of the injury. Id.

A. Invitee Status

The parties dispute Alaina’s status at the time of her injury. Missouri City
contends that Alaina was either a trespasser or licensee. Alaina contends that she
was either an invitee or a licensee. Because it is undisputed that Alaina did not pay
for use of the facility, the only way Alaina can obtain invitee status is by a
determination that the alleged dangerous condition is a “special defect.” See Tex.
Civ. Prac. & Rem. Code § 101.022(a) (same as a licensee “unless the claimant
pays for the use of the premises”), (b); see also Hayes, 327 S.W.3d at 116 (“The

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Act applies different standards of care depending upon whether the condition was a
premises defect, id. § 101.022(a) (same duty as licensee), or a special defect, id. §
101.022(b) (same duty as invitee).”).

Alaina contends that she is an invitee because the protruding metal bar is a
“special defect.” However, the jurisprudence is clear that a “special defect” must
be located on or near a highway, road, or street such that it would pose a threat to
the ordinary users of a particular roadway. See Tex. Civ. Prac. & Rem. Code §
101.022(b); see also Hayes, 327 S.W.3d at 116; Beynon, 283 S.W.3d at 331;
Kownslar, 654 S.W.3d at 476; Eaton, 573 S.W.2d at 179. Here, the alleged
dangerous condition is located on the gate to a softball field in a city park. There is
no evidence that the condition was on or near a highway, road, or street, or that it
posed a threat to the ordinary users of a particular roadway. See Hayes, 327
S.W.3d at 116 (“[P]laintiff bears the burden to allege facts demonstrating
jurisdiction.”). We conclude as a matter of law that the alleged dangerous
condition is not a “special defect.” See Kownslar, 654 S.W.3d at 478; see also
Barker v. City of Galveston, 907 S.W.2d 879, 884 (Tex. App.—Houston [1st Dist.]
1995, writ denied) (concluding swing set in public park was not a “special defect”
as a matter of law because it did not present an unexpected or unusual danger to
ordinary users of roadways); Beynon, 283 S.W.3d at 331 (“This Court has never
squarely confronted whether a hazard located off the road can (or can never)
constitute a special defect, though we did note in Payne that some courts of appeals
have held certain off-road conditions to be special defects.”). 2 Because we
conclude that the alleged dangerous condition on a gate to a softball field located

2
However, all such special defects were at least near a road. See Payne, 838 S.W.2d at
238 n.3. “Only two courts have found a special defect when the defect did not present a hazard
to the ordinary users of a roadway. . . . and, to the extent they classify as ‘special’ a defect that is
not like an excavation or obstruction on a roadway, we disapprove them.” See id.

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within a city park is not a “special defect” as that term has been interpreted, we
conclude that Alaina is not an invitee as a matter of law.3

We sustain Missouri City’s seventh issue.

B. Licensee Status

Because licensee status affords Alaina the greatest protection, we will
assume without deciding that Alaina is a licensee.4 “The duty owed to a licensee
requires that ‘a landowner not injure a licensee by willful, wanton or grossly
negligent conduct, and that the owner use ordinary care either to warn a licensee
of, or to make reasonably safe, a dangerous condition of which the owner is aware
and the licensee is not.’” Sampson, 500 S.W.3d at 391 (quoting Payne, 838
S.W.2d at 237)). Absent willful, wanton, or grossly negligent conduct, a licensee
must show:

(1) the condition of the premises created an unreasonable risk of harm
to the licensee; (2) the owner actually knew of the condition; (3) the
licensee did not actually know of the condition; (4) the owner failed to
exercise ordinary care to protect the licensee from danger; (5) the
owner’s failure was a proximate cause of the injury to the licensee.

Payne, 838 S.W.2d at 237. To defeat Missouri City’s jurisdictional plea, Alaina
was required to raise a fact issue regarding whether Missouri City had actual
knowledge of the alleged dangerous condition or that Missouri City was grossly
negligent. See City of Houston v. Gilbert, 656 S.W.3d 603, 615 (Tex. App.—
Houston [14th Dist.] 2022, pet. denied).

3
Alaina could also be an invitee if she had paid for use of the premises under the Tort
Claim Act. See Tex. Civ. Prac. & Rem. Code § 101.022 (a). However, it is undisputed that
Alaina did not pay for use of the premises.
4
Missouri City contends Alaina is a trespasser and that the only duty owed is to not
injure Alaina intentionally or through gross negligence. Alternatively, Missouri City contends
the Recreational Use Statute applies and Alaina must show gross negligence, malicious intent, or
bad faith. See Tex. Civ. Prac. & Rem. Code § 75.003.

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Actual knowledge is when the possessor or owner knows that the dangerous
condition existed when the plaintiff was injured. City of Denton v. Paper, 376
S.W.3d 762, 767 (Tex. 2012). To establish actual knowledge the plaintiff must
show that “the owner actually knew of the ‘dangerous condition at the time of the
accident, not merely of the possibility that a dangerous condition c[ould] develop
over time.’” Sampson, 500 S.W.3d at 392 (quoting Hayes, 327 S.W.3d at 117)).
Hypothetical knowledge will not suffice. Id. While circumstantial evidence can
establish actual knowledge, such evidence must either directly or by reasonable
inference support that conclusion. Id. (quoting Suarez v. City of Tex. City, 465
S.W.3d 623, 634 (Tex. 2015)). An inference premised on mere suspicion, or some
suspicion linked to other suspicion, is not reasonable. Id. at 394. A court may
consider whether the possessor had received reports of the potential danger created
by the condition or of injuries caused by it in determining whether the possessor
had actual knowledge. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513
(Tex. 2008).

Alaina argues that a genuine issue of material fact exists as to whether
Missouri City knew of the alleged dangerous condition. Alaina argues that the
alleged dangerous condition was “open and obvious to the City who was charged
with the responsibility of inspecting the fences for conditions that needed to be
repaired as the owner of the premises.” Alaina contends that because inspecting
the fences around the ballfields are part of routine maintenance and Missouri City
admitted it inspected each park at least once weekly, someone doing a walk-
through could have seen the protruding metal bar.

We disagree. There is no evidence in the record to show when the fence was
damaged to create the alleged dangerous condition. The evidence put forth by
Alaina was that inspections of the fence are part of the routine maintenance and

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weekly inspections of the park facilities. Missouri City admitted it maintains the
fences at the city parks and that the general condition of all parks is inspected
weekly. At weekly inspections, city employees determine if any repair work needs
to be done. However, even showing that Missouri City had inspected the fence
that week or even the day prior to Alaina’s injury, there is no indication that at the
time of the inspection the alleged dangerous condition existed. See Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (“An employee’s proximity
to a hazard, with no evidence indicating how long the hazard was there, merely
indicates that it was possible for the premises owner to discover the condition . . .
.”). On the evidence presented, it is pure speculation to assume that the fence had
been damaged prior to Missouri City’s last inspection. “Without evidence showing
how long the [dangerous condition existed], ‘the proximity of the employees is no
evidence of actual knowledge.’” See Sampson, 500 S.W.3d at 395 (quoting City of
Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) (per curiam)).

Alaina did not show that there were any prior complaints about the condition
of the fence around the ball field she was injured on. There is no evidence of any
city employee admitting to knowledge of the alleged dangerous condition prior to
Alaina’s injury. There were no records of any maintenance items or projects
conducted or needing to be done prior to her injury regarding this alleged
dangerous condition. There was no evidence of any prior similar injuries. Even
taking as true all evidence favorable to Alaina and indulging every reasonable
inference and resolving any doubts in her favor, there is no evidence that Missouri
City had actual knowledge of the alleged dangerous condition. 5

5
To the extent, if any, Alaina pleaded that Missouri City was grossly negligent, we
would conclude, based on the above evidence, she failed to provide any evidence of the
subjective-knowledge component of the gross negligence standard. See Suarez v. City of Tex.
City, 465 S.W.3d 623, 634 (Tex. 2015) (“To satisfy the subjective-knowledge component of the
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Alaina next argues that in the two months prior to Alaina’s injury, Missouri
City’s Director of Parks and Recreation presented a “site redevelopment plan”
where he stated that the sports fields at the park at issue were “dilapidated.”
Alaina argues that this is an admission of actual knowledge of the alleged
dangerous condition because the fields were generally “dilapidated.” However, the
knowledge that a dangerous condition could develop over time is insufficient to
prove actual knowledge of the alleged dangerous condition at the time of the
accident. See Sampson, 500 S.W.3d at 392 (quoting Hayes, 327 S.W.3d at 117).
This evidence shows only the opinion of Missouri City’s employee of the general
condition of the ball fields at the park and says nothing of the specific alleged
dangerous condition at issue in this case. “[T]he fact that materials deteriorate
over time and may become dangerous does not itself create a dangerous condition,
and the actual knowledge required for liability is of the dangerous condition at the
time of the accident, not merely of the possibility that a dangerous condition can
develop over time.” City of Dallas, 210 S.W.3d at 603. There is no evidence that
Missouri City had actual knowledge of the protruding metal bar. See Sampson,
500 S.W.3d at 397.

Alaina is not an invitee as a matter of law and, if a licensee, failed to raise a
fact issue regarding Missouri City’s actual knowledge of the alleged dangerous
condition. Therefore, the trial court erred by not granting the plea to the
jurisdiction and jurisdictional no evidence motion. See Kownslar, 654 S.W.3d at
476–77 (“[I]f the relevant evidence . . . failed to raise a fact question on the

gross negligence standard, the governmental entity must have ‘knowledge that the dangerous
condition existed at the time of the accident.’” (quoting City of Corsicana v. Stewart, 249 S.W.3d
412, 414–15 (Tex. 2008)). Alaina’s amended petition did not assert gross negligence, malicious
intent, or bad faith conduct.

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jurisdictional issue, then the trial court should have ruled on the plea as a matter of
law.”).

We sustain Missouri City’s eighth issue.

BYSTANDER CLAIMS

Appellees Allanias and Damita Hampton assert bystander liability claims
against Missouri City on the basis that they are close family members and
witnessed Alaina’s accident and injury. Missouri City contends that because there
is no jurisdiction over Alaina’s claims, the bystander claims must also fail.

“Before a bystander may recover, he or she must establish that the defendant
has negligently inflicted serious or fatal injuries on the primary victim.” Edinburg
Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex. 1997). “Although bystander
claims are considered independent and not derivative, it is also true that the
bystander plaintiff cannot recover unless the injured person can recover.” Estate of
Barrera v. Rosamond Village Ltd. P’ship, 983 S.W.2d 795, 799–800 (Tex. App.—
Houston [14th Dist.] 1998, no pet.). Because we have concluded there is no
jurisdiction over Alaina’s claims for injury, we similarly conclude there is no
jurisdiction over the bystander claims.

REMAINING ISSUES

Appellees contend in their response brief they did not assert a design or
manufacturing defect claim against Missouri City, making issues nine, ten, and
eleven moot. Based on our conclusion that Alaina is not an invitee and there is no
evidence of actual knowledge under the licensee standard of care, we need not
address Missouri City’s remaining issues regarding the standard of care owed if
Alaina is a trespasser. See State ex rel. Tex. Dep’t of Parks & Wildlife v. Shumake,
131 S.W.3d 66, 74 (Tex. App.—Austin 2003, as supplemented on denial of reh’g

11
(Apr. 15, 2004), aff’d sub nom., State v. Shumake, 199 S.W.3d 279 (Tex. 2006)
(“The standard of care owed to trespassers . . . is the lowest standard of care a
landowner can owe those on her land.”); see also Tex. R. App. P. 47.1.

CONCLUSION

We conclude that Alaina is not an invitee because the protruding metal bar is
not a “special defect” as a matter of law and that it is undisputed that Alaina did
not pay for use of the premises. Assuming without deciding that Alaina is a
licensee, we conclude there is no evidence Missouri City had actual knowledge of
the protruding metal bar at the time of Alaina’s injury. Therefore, Alaina failed to
establish the trial court’s jurisdiction to consider her claims against Missouri City.
Further, because the trial court lacks jurisdiction to consider Alaina’s claims, it
also lacks jurisdiction over the bystander claims of Allanias and Damita Hampton.
For these reasons, we reverse the trial court’s order denying Missouri City’s plea to
the jurisdiction and render judgment dismissing Appellees’ claims for lack of
subject matter jurisdiction.

/s/ Ken Wise
Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

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