Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00885-CV CITY OF SAN ANTONIO, Appellant v. Nadine REALME, Appellee From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-14297 Honorable Christine Vasquez-Hortick, Judge Presiding Opinion by: Velia J. Meza, Justice Sitting: Irene Rios, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice Delivered and Filed: September 23, 2026 REVERSED AND RENDERED On Thanksgiving morning, Nadine Realme was jogging in the Turkey Trot 5K, a race through downtown San Antonio that drew thousands. Stepping off the sidewalk to pass a group of runners, she caught her foot on a rusted metal sleeve—all that remained of a broken street sign— and fell into a utility pole, breaking her arm. The sleeve protruded one to three inches from the grass and went unnoticed until Realme fell. 04-23-00885-CV Realme sued the City of San Antonio for negligence. This case reaches us for a third time. In the first appeal we affirmed the denial of the City’s plea to the jurisdiction, holding that a fact question existed on whether the City’s immunity was waived under the Texas Tort Claims Act. City of San Antonio v. Realme, No. 04-20-00119-CV, 2021 WL 1009330, at *6 (Tex. App.—San Antonio Mar. 17, 2021, pet. denied) (mem. op.). We declined to reach the City’s Recreational Use Statute argument because Realme had not yet had an opportunity to develop the record on it, and we remanded to afford her that opportunity. Id. After remand, the City moved for traditional and no-evidence summary judgment on the applicability of the Recreational Use Statute and on whether there was a fact issue on gross negligence. If the statute applied, it would immunize the City against Realme’s ordinary-negligence claim and leave her only a claim for gross negligence. TEX. CIV. PRAC. & REM. CODE § 75.002(f). The trial court denied the City’s motion. On appeal, we held the statute did not apply to Realme’s participation in an organized 5K race, and we affirmed the denial of the motion without reaching the City’s gross-negligence argument. City of San Antonio v. Realme, 716 S.W.3d 818, 830 (Tex. App.—San Antonio 2024), rev’d, 731 S.W.3d 342 (Tex. 2026). The supreme court reversed our decision and held that the Turkey Trot was “recreation” under the statute, rendered judgment for the City on Realme’s ordinary-negligence claim, and remanded the gross-negligence question to this court. 731 S.W.3d at 354–55. Gross negligence has an objective element and a subjective element, and Realme had to raise a fact issue on both. She produced no evidence that the metal sleeve objectively posed an extreme degree of risk. Because her claim fails at the objective element, we reverse the trial court’s order and dismiss her claims for lack of jurisdiction. -2- 04-23-00885-CV DISCUSSION 1 Standard of Review The City is a governmental entity and is immune from suit absent legislative consent. See Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 96 (Tex. 2023). It may raise that immunity by plea to the jurisdiction or, as here, by motion for summary judgment. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). Where the jurisdictional question implicates the merits, we consider the parties’ evidence, take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve doubts in her favor. Suarez v. City of Tex. City, 465 S.W.3d 623, 632–33 (Tex. 2015). The City moved on both traditional and no-evidence grounds. We review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Because the no-evidence motion is dispositive, we take it up first. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). A no-evidence motion must identify the elements for which the movant contends no evidence exists. TEX. R. CIV. P. 166a(i). 1 The burden then shifts to the nonmovant, and the trial court must grant the motion unless she produces evidence raising a genuine issue of material fact. Helena Chem. Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023). 2 Gross Negligence Because the Recreational Use Statute applies, the City owed Realme only the duty a landowner owes a trespasser: the duty not to injure her intentionally or through gross negligence. 1 Rule 166a was substantially amended effective March 1, 2026. The amendments apply only to motions filed on or after that date. The City filed its motion in August 2023. All citations in this opinion are to the former rule. -3- 04-23-00885-CV TEX. CIV. PRAC. & REM. CODE § 75.002(f); Univ. of Tex. v. Garner, 595 S.W.3d 645, 648–49 (Tex. 2019) (per curiam). 2 Gross negligence has objective and subjective components. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). First, the act or omission must, viewed objectively from the defendant’s standpoint at the time, involve an extreme degree of risk considering the probability and magnitude of the potential harm. TEX. CIV. PRAC. & REM. CODE § 41.001(11). Second, the actor must have “actual, subjective awareness” of that risk yet proceed “with conscious indifference to the rights, safety, or welfare of others.” Id. The two components are independent, and a failure of proof on either defeats the gross-negligence claim. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex. 1993). 2.1 Extreme degree of risk “Extreme risk” is a demanding standard. It is not a “remote possibility of injury or even a high probability of minor harm, but rather the likelihood of the plaintiff’s serious injury.” Waldrip, 380 S.W.3d at 137. The threshold sits “significantly higher than the objective ‘reasonable person’ test for negligence.” Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex. 2019) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)). In determining whether a risk is “extreme,” we consider the probability that harm will occur and the magnitude of the harm if it does. TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A). Risk is measured prospectively, from the defendant’s perspective before the injury, never in hindsight. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). 2 Realme does not contend the City injured her intentionally. -4- 04-23-00885-CV The City’s no-evidence motion squarely challenged the extreme-risk element. Realme therefore had to point to evidence raising a fact issue. See Helena Chem. Co., 664 S.W.3d at 72. Her response rested on deposition testimony from four City employees: John Gamez, a building- maintenance supervisor; Joseph Cruz, a River Walk superintendent; Lincoln St. George, the downtown operations manager; and Andrew Garcia, Jr., who performed field maintenance. 3 From that testimony Realme makes several arguments. She contends the hazard was itself an extreme one, because the protruding metal sleeve was an “uncommon, hidden danger” that a runner could neither discover nor avoid. She contends the City’s own employees perceived the danger, because Cruz ordered the metal removed “immediately,” Gamez understood that it had to be removed to keep others safe, and St. George called it “a situation that needed to be taken care of.” And she contends that any reasonable person would know that a hidden metal protrusion is likely to cause a pedestrian to trip and fall. The first argument does not explain how the hazard involved an extreme degree of risk. That a condition is hidden, uncommon, and capable of tripping a runner establishes that it is unsafe. But extreme risk requires more. In Arredondo v. Techserv Consulting & Training, Ltd., a resident stepped into a hole left where a utility pole had been while she mowed her lawn, injuring her knee and back. 567 S.W.3d 383, 389 (Tex. App.—San Antonio 2018), aff’d in part, & rev’d in part on other grounds sub nom. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289 (Tex. 2020). 4 We held that the hole did not pose an extreme degree of risk even though the evidence would support calling 3 The trial court’s order recites that it considered “the City’s motion and evidence; Plaintiff’s Response and Exhibits B, C, D, and F attached thereto; and the City’s reply.” The court overruled the City’s objections to those four exhibits and did not consider Exhibit A, Realme’s complete deposition, or Exhibit E, Garcia’s deposition. Realme has not challenged that ruling, so we do not consider those two exhibits either. See Little v. Needham, 236 S.W.3d 328, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (declining to consider summary-judgment evidence the trial court did not consider). We applied the same rule against the City in the prior appeal. Realme, 716 S.W.3d at 829. Neither exhibit bears on the degree of risk in any event. 4 The supreme court affirmed our extreme risk holding. 612 S.W.3d at 292–93. -5- 04-23-00885-CV it “unsafe” and a “serious safety hazard,” because the defendant’s conduct did not constitute “a risk so great as to make it highly probable that harm would follow.” 567 S.W.3d at 396–97. Here the condition is a rusted metal sleeve protruding one to three inches from turf beside a utility pole. As in Arredondo, calling the metal sleeve an “uncommon, hidden danger” that required “immediate attention” does not demonstrate that it was highly likely to seriously injure anyone. The second argument asks us to measure the degree of risk from hindsight. Cruz, Gamez, and St. George all spoke and acted after St. George was told that metal was protruding from the ground and that someone had been hurt. The Amarillo court addressed a similar argument in City of Dalhart v. Lathem, 476 S.W.3d 103 (Tex. App.—Amarillo 2015, pet. denied). Boards had rested atop a row of lockers for six years before one fell on a swimmer. Id. at 105, 109. Though an employee noticed the precarious position of the boards every day and stated that she thought they were “not very safe,” the Lathem court held that no extreme risk was shown. Id. at 109 (“There is a difference between ‘not very safe’ and a risk so great as to make it highly probable that harm would follow.”). Similarly, that a municipal employee thinks a defect ought to be fixed once he is told about it does not establish that the defect was, objectively, highly likely to cause serious injury. If it did, every repair order would be sufficient to raise a fact issue on gross negligence. The third argument asks us to apply the wrong standard. Realme asks what “any reasonable person would know.” The supreme court has held the “reasonable person” standard sits considerably below the gross-negligence threshold. Medina, 593 S.W.3d at 249. A pedestrian tripping and falling is the ordinary consequence of a walkway defect. Extreme risk turns on the likelihood of serious injury. Waldrip, 380 S.W.3d at 137. Beyond speculation, Realme offers no evidence of the probability that a runner would strike the metal sleeve or of the magnitude of the injury that would follow if one did. See TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A). What the -6- 04-23-00885-CV record shows is a small piece of metal that no witness had noticed before, that no one is known to have struck, and that the City ground down as soon as it learned the metal was there. In Wal-Mart Stores, Inc. v. Alexander, a customer tripped over a five-eighths-inch ridge at the base of a concrete ramp and broke her hip, and the jury found the store both negligent and grossly negligent. 868 S.W.2d at 323–24. The supreme court affirmed her actual damages and reversed the exemplary award, holding there was no evidence of an extreme degree of risk because no one had ever fallen at the ridge and only one other customer had stumbled there. Id. at 324, 327. The record here may show negligence—a hazard the City should have found sooner. But evidence that will support a negligence finding does not by itself establish an extreme degree of risk. We conclude Realme produced no evidence that the metal sleeve posed an extreme degree of risk. Because the objective element disposes of the appeal, we do not reach the subjective actual- awareness element or the City’s traditional grounds. See TEX. R. APP. P. 47.1; Alexander, 868 S.W.2d at 327 (“Having concluded that there is no evidence on this record of an extreme degree of risk, we need not and indeed cannot consider the [subjective-awareness] prong.”). We sustain the City’s sole appellate issue. The supreme court has already rendered judgment for the City on Realme’s ordinary- negligence claim. 731 S.W.3d at 355. No viable claim remains. The trial court therefore lacks jurisdiction over Realme’s claims, and they must be dismissed. See Miranda, 133 S.W.3d at 228. CONCLUSION We reverse the trial court’s order denying the City’s motion for summary judgment and dismiss Realme’s claims against the City for lack of jurisdiction. Velia J. Meza, Justice -7-