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Texas Recreational Use Statute Bars Grandmother’s Claim

baseball-1-1031821-mIn the recent ruling in City of Diboll, Texas v. Louie Lawson, a Texas appellate court considered a case in which a Texas city claimed the recreational use statute applied to the plaintiff’s claim and that it was not grossly negligent under the statute. The case arose when a woman went to a city park to watch her granddaughter’s softball game. When leaving the park, she tripped on a four-inch hollow pipe poking up from the center of the walkway on park grounds. It would usually act as a receptacle for a pole and create a barrier that prevented cars from entering the park. However, since the pole wasn’t in place, she tripped, fell, and suffered serious injuries.

The plaintiff sued the city for a premises defect. She died for unrelated reasons, but the personal representative of her estate substituted as the plaintiff. The city filed a plea to the jurisdiction and moved for summary judgment, which was denied. Accordingly, it appealed.

On appeal, the City argued that the plaintiff had been engaged in recreation under the recreational use statute, and so the plaintiff had to plead and prove the City acted with gross negligence. It further argued that the plaintiff had not pled it was grossly negligent, and the evidence showed it was not grossly negligent.

The purpose of a plea to the jurisdiction is to defeat a cause of action based on considering whether the claims asserted have merit. It challenges whether or not the trial court has jurisdiction over a dispute. It can be granted without allowing a plaintiff to amend if the pleadings show there is no jurisdiction. The appellate court looks at relevant evidence where the plea challenges the existence of jurisdictional facts.

In general, government entities in Texas have sovereign immunity against litigation for money damages unless the Legislature has given clear and unambiguous consent to sue. There is a waiver of immunity for premises liability suits. However, under the recreational use statute, if somebody enters government property and engages in recreation on those premises, the governmental entity does not owe to the person a greater degree of care than what is owed to a trespasser. The duty owed to a trespasser is minimal. A premises owner only owes a trespasser the duty not to hurt a trespasser willfully, wantonly, or because of “gross negligence.” Gross negligence is an act or omission in which someone is aware of an extreme degree of risk but has conscious indifference to the rights, safety, or welfare of another.

What counts as a recreational activity? It includes any activity associated with enjoying the outdoors. The main question that must be answered is what the plaintiff was doing at the time of the injury. In this case, the city argued that the plaintiff was engaged in recreation by going to her granddaughter’s softball game to watch. The plaintiff argued it wasn’t required to plead or prove gross negligence.

The appellate court explained that the courts of appeal had differing opinions about whether watching a sporting event counted as recreation. However, it did find that watching a game, and traveling to and from watching a game, was recreation. It also found that the plaintiff had to plead that the city acted with gross negligence. However, the plaintiff hadn’t alleged any evidence that the city had actual knowledge of the defect. The appellate court reversed the trial court’s order and dismissed the plaintiff’s suit.

If you are hurt in an accident in a public place, it’s important to retain attorneys who understand when the government has waived its immunity and who have experience in these challenging cases. The experienced San Antonio premises liability attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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