City of Whitesboro, Texas v. Diana Montgomery

REVERSE and RENDER and Opinion Filed August 20, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00979-CV

CITY OF WHITESBORO, TEXAS, Appellant
V.
DIANA MONTGOMERY, Appellee

On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-21-0615

MEMORANDUM OPINION
Before Justices Reichek, Carlyle, and Miskel
Opinion by Justice Reichek
In this interlocutory appeal, the City of Whitesboro, Texas challenges the trial

court’s denial of its plea to the jurisdiction. Bringing two issues, the City argues the

trial court abused its discretion in denying its objections to Diana Montgomery’s

evidence and in denying the City’s motion for no-evidence and traditional summary

judgment in support of its plea. Because we conclude the City’s immunity was not

waived for the personal injury claims asserted against it in this case, we reverse the

trial court’s order and render judgment dismissing Montgomery’s claims for lack of

jurisdiction.
Background

The events giving rise to this action occurred at the Whitesboro Community

Swimming Pool which is owned and operated by the City. Before the start of the

2019 swimming season, Penny Renfroe, the City’s Parks and Recreation Director,

Dare Nolan, the Director of Aquatics, and Jen Rue, the Assistant Pool Manager,

decided to make changes to the men’s and women’s restroom facilities. Renfroe

testified the floor mats used in the restrooms made cleaning the floor difficult and

constituted a tripping hazard. Although there were no reported falls, Renfroe stated

she had seen people catch their foot on the elevated edges of the mats. After

considering different options, they decided to remove the mats and refinish the

restroom floors with an epoxy that contained a gritty, non-slip additive.

After the floors were refinished, the Grayson County Health Department

inspected the pool facility including the restrooms. With the new floor surface in

place and the mats removed, the health department determined the pool’s dressing

and sanitary facilities were “properly installed, cleaned, and maintained.” On May

20, the department issued a permit allowing the pool to open for the 2019 season.

The Whitesboro pool is an American Red Cross certified facility and hires

only Red Cross certified life guards. Renfroe testified that, as part of their

orientation, the lifeguards are trained how to clean the restroom area and what to use

to clean it. At the close of every day, a checklist is used and signed to ensure that

all the cleaning procedures have been done. Open swimming ends at 6:00 p.m., and

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the pool staff takes care of the cleaning responsibilities before the evening activities

start at 6:30.

On the afternoon of May 28, Rue was informed by an adult patron at the pool

that two girls were playing with shampoo in the women’s restroom. As Rue walked

toward the restroom, she encountered Hailey Armer, the lead lifeguard. Armer had

just finished her rotation and was going to take a half-hour break. Armer told Rue

she would clean the restroom during her break. The cleaning process took longer

than the break period, so Armer requested another lifeguard cover her next rotation

at the pool. As part of the cleaning process, Armer hosed down the floor and used a

squeegee to remove the excess water.

During the time the restroom was being cleaned, it was closed to the public.

Two girls approached Rue saying they needed to use the facilities and Rue escorted

them inside the closed restroom. While waiting for the girls, Rue observed the floor

and did not see any bubbles or other substances. Rue had no concerns at that time

about the condition of the floor and did not believe it represented a safety hazard.

There were two evening water aerobics classes on May 28; one beginning at

6:30 p.m. and the other beginning at 7:30. The first class had seventeen participants

and the second class had eight participants. The instructor for both classes was Diane

Fielding. Fielding paid the City a percentage of the fees she collected from the

participants in her classes to be able to use the pool. She testified she was not

employed by the City, and the City had no control over her work.

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Montgomery arrived at the pool at 7:15 for the 7:30 class. Also attending the

7:30 class was Montgomery’s friend, Barbara Blessing. Blessing testified that,

toward the end of the class, she left the pool to use the restroom. As she entered the

restroom she noticed she “slid just a little bit.”

Montgomery testified that, after finishing Fielding’s class, she walked to the

restroom. She stated she did not think she dried off before going inside and did not

recall seeing any standing water or soapy or oily substances on the floor. About

halfway into the room, her left foot slipped and she fell to the floor. Montgomery

stated she slipped on soap.

From inside one of the bathroom stalls, Blessing heard a loud “thump” and a

“very pained voice” calling out her name. Blessing exited the stall and found

Montgomery lying on the floor. She went to help Montgomery as other members of

the class entered the room. Blessing stated the other class participants were having

trouble coming into the area because the floor was “very slick.”

Fielding came into the restroom and asked how Montgomery was doing.

Montgomery stated that Fielding told everyone present that two girls had been

playing with soap pods in the restroom earlier and they were supposed to have

cleaned it up, but must have “missed some of the soap.” Blessing said Fielding told

them there were “a couple of lifeguards [] throwing soap pods at each other when

[she] came in . . . before class started” and “it was very slick.” Fielding denied

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making these statements and said she did not learn about girls having a “shampoo or

soap fight” in the restroom until she spoke with Armer the next day.

Montgomery was eventually helped to her feet by one of the lifeguards on

duty. Before leaving the pool, Montgomery signed an incident report stating she had

slipped in the women’s restroom and sustained a bruised left arm and scuffs on her

left thigh. She was then helped to her car and taken to the emergency room.

Montgomery brought this suit against the City alleging a claim for “premises

liability / premises defect – gross negligence.” Her live pleading alleges that, as a

result of her fall in the restroom, she suffered “broken bones, torn ligaments, severe

pain, and disorientation.” In support of her claim, Montgomery alleged the City was

grossly negligent by:

a) failing to provide a safe walkway inside the public restroom
for patrons and within Defendant’s premises;

b) removing the anti-slip mats from the restroom prior to hosting
events for Plaintiff and other elderly attendees;

c) creating an extremely dangerous condition on the premises
involving tangible personal property, that is in creating a slick and
unclean restroom floor covered in soap after employees fought with
“soap pods;”

d) ignoring this foreseeable and preventable hazard, failing to
take reasonable steps to discover[] and correct the hazard, especially
considering the vulnerable nature and age of Plaintiff and her fellow
classmates;

e) failing to warn Plaintiff of the existence of the hazardous and
unreasonably dangerous condition of the premises although one of its
employees created the dangerous condition and/or the dangerous

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condition had existed on the premises for such a period of time that it
should have been discovered and corrected by Defendant;

f) failing to prevent negligent activity on its premises;

g) failing to provide, incorporate, and/or abide by safety
protocols;

h) failing to develop and implement adequate policies and
procedures for the hiring, training, and supervision of its employees;

i) failing to ensure that its employees were aware of potential
dangers and that such employees followed proper policies and
procedures for patron and tenant safety; and

j) failing to properly train and supervise its employees so as to
avoid creating an unreasonable risk of harm to patrons and tenants.

The City answered and filed a plea to the jurisdiction asserting there was no waiver

of the City’s governmental immunity for Montgomery’s claims.

In its motion for no-evidence and traditional summary judgment in support of

the plea, the City argued there was no evidence to show it was grossly negligent as

required by the recreational use statute which limits the City’s liability under the

Texas Tort Claims Act (“TTCA”). Montgomery responded that she had sufficient

evidence to create a fact issue on the City’s gross negligence based, in part, on the

alleged statements made by Fielding that lifeguards had been playing with soap in

the restroom before the start of the water aerobics class and did not sufficiently clean

the floor afterwards. The City objected and moved to strike the testimony about

Fielding’s alleged statements on the ground that it was inadmissible hearsay. The

trial court denied both the City’s motion to strike and its plea to the jurisdiction. This

appeal followed.
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Analysis

I. Motion to Strike

In its first issue, the City contends the trial court erred in overruling its

objections to Montgomery’s and Blessing’s testimony about statements allegedly

made by Fielding on the night of the accident. The City objected to the testimony

on the ground that it was hearsay. Hearsay is defined as an out-of-court statement

offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801.

Such evidence is inadmissible unless it falls under a recognized exception. Id.; TEX.

R. EVID. 803. We review a trial court’s decision to admit or exclude evidence for an

abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020).

The testimony concerning what Fielding allegedly said on the night

Montgomery fell was clearly intended to prove the truth of the matters asserted –

that City employees had created a hazard by playing with soap in the restroom and

failing to sufficiently clean it up. In addition to the fact that Fielding denied under

oath making these statements, we conclude the evidence does not fit into any of the

exceptions to the hearsay rule that would render it admissible.

Montgomery argues the statement does not constitute hearsay because it is a

statement made by a party’s agent or employee on a matter within the scope of that

relationship. See TEX. R. EVID. 801(2)(D). Montgomery’s sole evidence of an

employment relationship between Fielding and the City is a Rule 194 disclosure

provided by the City in an earlier, nonsuited lawsuit brought by Montgomery based

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on the same facts. In the disclosure, the City listed “Diane Felding” as a person with

knowledge of relevant facts and stated she was “Defendant’s employee present at

the pool at the time of Plaintiff’s fall.” At Fielding’s deposition in this case,

however, the attorney who drafted the disclosure informed Montgomery’s counsel

she was mistaken about Fielding being an employee. Opposing counsel

acknowledged the error and said she was “going to skip a whole page of questions.”

She then asked Fielding about the financial arrangement she had with the City that

allowed her to use the City’s pool and lifeguards. Fielding later testified in an

affidavit that it appeared everyone at her deposition understood she was not a City

employee, and the City’s counsel had simply made an error in the disclosure.

Because Montgomery nonsuited the case in which the erroneous disclosure

was made, the City could not amend its answer once the error was discovered. See

TEX. R. CIV. P. 193.5. We conclude the disclosure, acknowledged by both sides as

a mistake, is insufficient to create a fact issue about whether Fielding was a City

employee. Cf. Frazer Transp., Inc. v. Transafe, Inc., No. 01-16-00824-CV, 2017

WL 3081243, at *4 (Tex. App.—Houston [1st Dist.] July 20, 2017, no pet.) (mem.

op.) (party cannot rely on disclosure error while having correct information).

Montgomery additionally argues Fielding can be considered an agent of the

City under the TTCA’s definition of “employee.” Section 101.001(2) of the TTCA

defines an “employee” as ,

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a person, including an officer or agent, who is in the paid service of a
governmental unit by competent authority, but does not include an
independent contractor, an agent or employee of an independent
contractor, or a person who performs tasks the details of which the
governmental unit does not have the legal right to control.

Fielding testified she was an independent contractor. Montgomery acknowledges in

her brief that the City did not exercise any authority or control over Fielding or how

she performed her job as a water aerobics instructor. Montgomery’s argument that

Fielding can be considered an agent of the City under section 101.001(2) is, therefore

without merit.

In the alternative, Montgomery argues Fielding’s alleged statements are

admissible under several exceptions to the hearsay rule. She asserts the alleged

statements were a present sense impression, an excited utterance, or statements

against interest. See TEX. R. EVID. 803(1), (2), (24). A present sense impression is

a “statement describing or explaining an event or condition, made while or

immediately after the declarant perceived it.” TEX. R. EVID. 803(1). A present sense

impression has sufficient indicia of reliability to be admissible because: (1) a report

made at the moment of witnessing an event or condition is safe from any error from

defect of the declarant’s memory; (2) there is little or no time for calculated

misstatement; and (3) the statement will usually be made to the witness who reports

it who would have equal opportunity to observe and check for a misstatement.

Benson v. Chalk, 536 S.W.3d 886, 895 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied). Here, Fielding’s alleged statements about lifeguards throwing soap pods

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were made well after the event supposedly occurred and to people who were not

there at the time. The statements, therefore, do not qualify as a present sense

impression. See id.

For the excited utterance exception to apply, the statement must “relate[] to a

startling event or condition” and be “made while the declarant was under the stress

of excitement that it caused.” TEX. R. EVID. 803(2). “A statement that is simply a

narrative of past events or acts, as distinguished from a spontaneous utterance, does

not qualify as an excited utterance regardless of how soon after the event it is made.”

Felix v. Gonzalez, 87 S.W.3d 574, 578 (Tex. App.—San Antonio 2002, pet. denied).

Fielding entered the restroom sometime after Montgomery fell and while

Montgomery was already being assisted by others. Fielding testified that, although

she was concerned for Montgomery, she did not view the occurrence as startling and

was not excited, overcome by emotion, or nervous. The alleged statements pertained

to past events, not Montgomery’s fall. We conclude the excited utterance exception

does not apply.

A statement against interest is a statement that “a reasonable person in the

declarant's position would have made only if the person believed it to be true

because, when made, it was so contrary to the declarant's proprietary or pecuniary

interest or had so great a tendency to invalidate the declarant's claim against someone

else or to expose the declarant to civil or criminal liability or to make the declarant

an object of hatred, ridicule, or disgrace.” TEX. R. EVID. 803(24). Montgomery

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argues the alleged statements were against Fielding’s interest because they pertain

to the facilities surrounding the pool in which she teaches water aerobics. But the

alleged statements were about an isolated incident in which Fielding was not

involved. Fielding had no proprietary interest in the facilities, and was not employed

by the City. Therefore, the statements would not affect her interests or subject her

to liability. Accordingly, the alleged statements were not statements against interest.

Because Montgomery’s and Blessing’s testimony regarding statements they

claim were made by Fielding is hearsay that does not fit within an exception that

would make it admissible, we conclude the trial court abused its discretion in

denying the City’s motion to strike. We resolve the City’s first issue in its favor.

II. Plea to the Jurisdiction

In its second issue, the City contends the trial court erred in denying its motion

for summary judgment in support of its plea to the jurisdiction. See Tex. Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (governmental entity

must meet summary judgment standard of proof in plea to jurisdiction). Because the

existence of subject-matter jurisdiction is a question of law, we review the trial

court’s ruling de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).

If the evidence submitted by the parties creates a fact question regarding jurisdiction,

the plea must be denied and the fact issue resolved by the fact finder. Id. at 633. If

the evidence fails to raise a fact issue, however, the plea to the jurisdiction must be

granted as a matter of law. Id.

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Absent a valid statutory or constitutional waiver of immunity, a trial court

lacks subject-matter jurisdiction to adjudicate a lawsuit against a municipality. Id.

at 631. The TTCA waives immunity from suit for claims against a governmental

unit for personal injury and death caused by a condition or use of real property if the

governmental unit, were it a private person, would be liable to the claimant according

to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). When the property

at issue is open to the public for recreational purposes, and the injury occurs when

the plaintiff is engaged in recreation, the recreational use statute limits the

governmental unit’s duty to the plaintiff to only that which is owed to trespassers.

Id. §75.002. Thus, when applicable, the recreational use statute requires a plaintiff

to show gross negligence, malicious intent, or bad faith. Id. § 75.002; Suarez, 465

S.W.3d at 632. The term “recreation” is defined to include activities such as

swimming, and the statute contemplates not only when the plaintiff is actively

engaged in the recreational activity, but also when the plaintiff is on the premises or

journeying to and from the recreational area. Id. § 75.001(3); City of Plano v.

Homoky, 294 S.W.3d 809, 816 (Tex. App.—Dallas 2009, no pet.).

Montgomery does not dispute that the recreational use statute applies in this

case. She also does not allege the City acted with malicious intent or bad faith. She

asserts only that the City’s actions rose to the level of gross negligence. As used in

the recreational use statute, gross negligence has both an objective and subjective

component:

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(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.

Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007). To raise

a fact issue on gross negligence, Montgomery was required to present legally

sufficient evidence that the City had actual, subjective awareness of a condition in

the restroom that involved an extreme risk of serious injury or death, and it was

consciously indifferent to the rights, safety, and welfare of others. Id. The City must

have had actual knowledge that the condition existed at the time of the accident. See

Suarez, 465 S.W.3d at 634. “Although there is no one test for determining actual

knowledge that a condition presents an unreasonable risk of harm, courts generally

consider whether the premises owner has received reports of prior injuries or reports

of the potential danger presented by the condition.” Univ. of Tex.-Pan Am. v.

Aguilar, 251 S.W.3d 511, 513 (Tex. 2008).

Montgomery’s lawsuit bases the City’s alleged liability on two different, but

related premises conditions; the City’s choice to change the flooring in the restroom,

and the slippery condition of the floor at the time Montgomery fell. Montgomery

asserts the City was grossly negligent in removing the safety mats and installing a

“slippery water-resistant non-porous epoxy floor” before it “proceeded to invite

elderly women to a water aerobics class knowing that they would utilize the
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women’s restroom.” We first note there is no evidence in the record that the City

“invited” anyone to the water aerobics classes conducted by Fielding, or that it was

aware of the ages or genders of the participants. More importantly, the City’s

decision to remove the mats and replace the flooring in the restroom was a

discretionary decision about design and safety features for which the City maintains

immunity. See City of Corsicana v. Stewart, 249 S.W.3d 412, 416 (Tex. 2008) (“The

City is immune from liability for discretionary decisions concerning the expenditure

of limited resources for the safety of its citizens.”); State v. Miguel, 2 S.W.3d 249,

251 (Tex. 1999) (decisions about highway design and safety features are

discretionary policy decisions for which State retains immunity); City of Dallas v.

Hughes, 344 S.W.3d 549, 555–56 (Tex. App.—Dallas 2011, no pet.) (City immune

from liability for choice of material used to build bridge in recreational park).

Montgomery makes no argument that the City’s immunity for discretionary

decisions was waived in this case.

Although the City retains immunity for its discretionary decisions, it is not

immune from liability for negligent implementation of those decisions or the

negligent maintenance of its premises. Hughes, 344 S.W.3d at 556. Montgomery

states she provided evidence that the gritty, non-slip texture was not added to the

epoxy on the restroom floor until more than a month after she fell. The evidence

upon which Montgomery relies is a check request for “non-slip additive” dated July

3, 2019. When questioned about the check request, Renfroe testified it was for a

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reapplication of the same non-slip epoxy that had been applied to the floor before

the pool opened in May. This testimony is corroborated by the fact that the restroom

passed the health and safety inspection on May 20, 2019, eight days before

Montgomery fell.

Montgomery also points to the fact that the epoxy had to be reapplied to show

the City failed to properly maintain the floor. Renfroe testified the cleaning

procedures they used, including use of a power sprayer, resulted in the epoxy

chipping and peeling after the pool had been open “for a little over a month.” But

she further testified it was her understanding that the floor had not been properly

prepared before the epoxy was applied, which caused it to peel. There was no

evidence the floor was chipped or peeling at the time Montgomery fell a few days

after the pool opened. Nor was there evidence that the chipping and peeling

degraded the condition of the floor to a point that it created a serious risk of injury

about which the City had actual knowledge.

In addition to the epoxy on the floor, Montgomery contends the City “knew

its employees caused the soapy floor” in the women’s restroom before the water

aerobics class began. The only evidence that City employees caused the women’s

restroom floor to be soapy is the hearsay testimony about Fielding’s alleged

statements that we have already determined was inadmissible. Even considering this

testimony, however, Montgomery failed to present any evidence that the City had

actual knowledge the floor constituted a serious hazard at the time Montgomery fell.

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All the evidence, including Fielding’s alleged statements, shows that after the

“soap fight” in the restroom, the floor was cleaned to eliminate the mess. Renfroe

testified all the lifeguards were trained on proper cleaning procedures which

included hosing down the restroom floor and removing the excess liquid with a

squeegee. Although Fielding purportedly speculated they “must have missed some

of the soap” in the cleaning process, Montgomery testified she did not see any water,

soap, or other substances on the floor when she entered. The restroom was open to

the public for some time after it was cleaned and before Montgomery fell, including

during the earlier water aerobics class, and there were no reports of falls or issues

with the restroom floor during that time. In short, there is no evidence that directly

or by reasonable inference supports the conclusion the City had actual knowledge

there was a dangerous condition on the restroom floor at the time Montgomery fell.

See Suarez, 465 S.W.3d at 634.

Because Montgomery failed to provide evidence the City had subjective

awareness of a condition creating an extreme degree of risk, we conclude the trial

court erred in denying its plea to the jurisdiction. See Univ. of Tex. v. Garner, 595

S.W.3d 645, 649 (Tex. 2019) (absent gross negligence in suit where recreational use

statute applies, governmental entity is immune from suit and trial court lacks subject

matter jurisdiction).

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We reverse the trial court’s order and render judgment dismissing

Montgomery’s claims for lack of jurisdiction.

/Amanda L. Reichek/
AMANDA L. REICHEK
230979F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CITY OF WHITESBORO, TEXAS, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-23-00979-CV V. Trial Court Cause No. CV-21-0615.
Opinion delivered by Justice
DIANA MONTGOMERY, Appellee Reichek. Justices Carlyle and Miskel
participating.

In accordance with this Court’s opinion of this date, the order of the trial
court denying the CITY OF WHITESBORO’S Motion for No-Evidence and
Traditional Summary Judgment in Support of its Plea to the Jurisdiction is
REVERSED and judgment is RENDERED that:

This suit is dismissed for lack of jurisdiction.

It is ORDERED that appellant CITY OF WHITESBORO, TEXAS recover
its costs of this appeal from appellee DIANA MONTGOMERY.

Judgment entered August 20, 2024

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