OPINION
Opinion by
Justice CASTILLO.
This is an interlocutory appeal from the denial of a plea to the jurisdiction.
In three issues, appellant Guadalupe-Bianco River Authority(“GBRA”) asserts that the trial court erred in denying the plea to the jurisdiction because appellees
failed to allege any claims which fall within the waiver provisions of the Texas Tort Claims Act.
We reverse.
Background
GBRA is a conservation and reclamation district created by the State of Texas as a governmental agency in 1933 to oversee the waters of Hays, Comal, Guadalupe, Caldwell, Gonzales, DeWitt, Victoria, Kendall, Refugio and Calhoun counties. Act of May 21, 1975, 64th Leg. R.S., Ch. 433, 1975 Tex. Gen. Laws 1149, 1149. Among the public duties of GBRA are the conservation and development of the navigation of inland waters, and the control, storing, preservation and distribution of the waters of rivers and streams contained therein.
Id.
Among the waters within the jurisdiction of the GBRA is Goff Bayou. Within Goff Bayou, GBRA maintains a saltwater barrier which prevents saltwater from entering the fresh waters of the diversion system and also serves to release excess fresh water out of the bayou. The saltwater barrier is an unmanned concrete and steel structure which connects the bayou with one of the bays of the Gulf of Mexico. It operates by use of radial, or retainer, gates
which face the opposing force of the water and are hinged so they can be raised outside the water. They can be raised off the bottom of the channel to allow water to flow beneath them. When the gates are closed, the saltwater is prevented from migrating upstream. The gates are opened to release flood waters.
On October 20, 1997, Paul Pitonyak and Carl Holcomb drowned in Goff Bayou. Appellees filed suit against GBRA,
citing the Texas Tort Claims Act. GBRA filed a
plea to the jurisdiction, which was denied by the trial court, and this appeal ensued.
Standard of Review
This appeal is strictly limited to our review of the trial court’s ruling on the plea to the jurisdiction. Tex. Crv. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2002). A plea to the jurisdiction is the vehicle by which a party contests the trial court’s authority to determine the subject matter of the cause of action.
State v. Benavides,
772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). A governmental unit may properly challenge a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction since absent the state’s consent to suit a trial court has no subject matter jurisdiction.
Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638-39 (Tex.1999).
The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court’s jurisdiction to hear a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex.1993);
Mission Consol. Indep. Sch. Dist. v. Flores,
39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). A trial court must not weigh the merits of the case, but instead consider only the pleadings and evidence pertinent to the jurisdictional question.
County of Cameron v. Brown,
80 S.W.3d 549, 555-556, 45 Tex. Sup.Ct. J. 680 (Tex. 2002) (citing
Tex. Natural Res. Conservation Comm’n v. White,
46 S.W.3d 864, 868 (Tex.2001) and
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000)). In doing so, the trial court must construe the plaintiffs pleadings liberally in favor of jurisdiction,
Peek v. Equip. Serv. Co.,
779 S.W.2d 802, 804 (Tex.1989), and must take all factual allegations pled as true, unless the defendant pleads and proves that the allegations were fraudulently made in order to confer jurisdiction.
Cont. Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444, 449 (Tex.1996). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper.
Peek,
779 S.W.2d at 804-05;
City of Austin v. L.S. Ranch,
970 S.W.2d 750, 753 (Tex.App.-Austin 1998, no pet.). However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court.
Bybee v. Fireman’s Fund Ins. Co.,
160 Tex. 429, 331 S.W.2d 910, 917 (1960). If the plaintiffs pleadings are insufficient to demonstrate the court’s jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing.
Brown,
at 559;
Peek, 779
S.W.2d at 804-05. On appeal, because the question of subject matter jurisdiction is a legal question, we review the trial court’s ruling on a plea to the jurisdiction under a
de novo
standard of review.
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex.1998). To determine whether the plaintiff has affirmatively demonstrated the court’s jurisdiction to hear the case, we consider the facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.
White,
46 S.W.3d at 868. Like the trial court, we must construe the pleadings in the plaintiffs favor and look to the pleader’s intent.
Brown,
at 559. Our task is not to determine the merits of the case but rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court.
Baston v. City of Port Isabel,
49 S.W.3d 425, 427-28 (Tex.App.-Corpus Christi 2001, pet. denied).
Issues Presented
In the present case, GBRA asserts that the trial court lacks subject matter juris
diction over appellees’ claims because ap-pellees’ petition does not assert a claim which is cognizable under the Texas Tort Claims Act. Specifically, GBRA claims that the trial court erred in denying the plea to the jurisdiction because: 1) governmental immunity barred appellees’ claims and had not been waived by the Texas Tort Claims Act; 2) the saltwater barrier was not defective;
and 3) no cause of action exists under section 11.050 of the Texas Water Code.
As the issues are interrelated and all are some variant of the argument that the trial court erred in denying the plea to the jurisdiction because appellees’ pleadings did not raise a claim cognizable under the Texas Tort Claims Act, we will address them jointly as we consider the question of the trial court’s jurisdiction in the instant case.
Sovereign Immunity
Sovereign immunity, unless waived, protects the State of Texas from lawsuits for damages absent legislative consent.
Gen. Servs. Comm’n. v. Little Tex Insulation Co.,
39 S.W.3d 591, 594 (Tex.2001). Sovereign immunity derives from the principle that the sovereign may not be sued in its courts without its consent.
Tex. Workers’ Comp. Comm’n v. Garcia,
862 S.W.2d 61, 72 (Tex.App.-San Antonio 1993),
rev’d on other grounds,
893 5.W.2d 504 (Tex.1995). Sovereign immunity encompasses two principles-immunity from suit and immunity from liability.
Fed. Sign v. Tex. S. Univ.,
951 S.W.2d 401, 405 (Tex.1997). Immunity from liability protects the State from judgments, even where there is an express consent on the part of the Legislature to permit a suit.
Id.
Immunity from liability is an affirmative defense that must be pled or else it is waived.
Jones,
8 S.W.3d at 638 (citing
Davis v. City of San Antonio,
752 S.W.2d 518, 519-20 (Tex.1988)). Immunity from suit, on the other hand, bars a suit against the State unless the State expressly gives consent to the suit.
Fed. Sign,
951 S.W.2d at 405. Immunity from suit then deprives a trial court of subject matter jurisdiction over the governmental agency, even if liability is undisputed.
Travis Co. v. Pelzel &
Assocs.,
Inc.,
77 S.W.3d 246, 247, 45 Tex. Sup.Ct. J. 623 (Tex. 2002)(citing
Jones, 8 S.W.3d
at 638).
Subject matter jurisdiction is never presumed and cannot be waived.
Tex. Ass’n of Bus.,
852 S.W.2d at 443-44. Since a governmental unit is protected from suit by sovereign immunity, pleadings in a suit against a governmental unit must affirmatively demonstrate, either by reference to a statute or express legislative permission, that the legislature consented to the suit.
Jones, 8
S.W.3d at 638. Absent the State’s consent to suit, the trial court has no jurisdiction.
Id.
The Texas Tort Claims Act and Waiver of Sovereign Immunity
As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity.
Harris County v. Dillard,
883 S.W.2d 166, 168 (Tex.1994). Whether a particular claim falls into an exception from the general doctrine of sovereign immunity is entirely dependent on the statutory language.
Dallas County Mental Health &
Mental Retardation v. Bossley,
968 S.W.2d 339, 341 (Tex.1998).
The Texas Tort Claims Act provides that governmental units are liable for
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997).
Although the Texas Tort Claims Act speaks in terms of waiver of immunity from liability, it also waives immunity from suit to the same extent.
Tex. Dep’t of Crim. Justice v. Miller,
51 S.W.3d 583, 587 (Tex.2001)(citing Tex. Crv. PRAC.
&
Rem.Code Ann. § 101.025(a) (Vernon 1997)) (“Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.”). However, the mere invocation of the Texas Tort Claims Act in a petition does not,
per consequens,
waive sovereign immunity and confer jurisdiction on the trial court.
Id.
The claim raised must fall within the specific scope of the waiver of immunity provided by the Texas Tort Claims Act and so affirmatively demonstrate the trial court’s jurisdiction to hear the case.
Id.
Therefore, since appellees’ petition raises a claim against a governmental unit under the Texas Tort Claims Act, we must review the petition to ascertain the nature of the claim raised, examine the tort claims act to determine the scope of waiver of sovereign immunity relevant to such claim, and then consider the particular facts of the claim to decide whether it comes within that scope so as to invoke jurisdiction in the trial court.
Id.
In doing so, we consider the facts alleged in the petition and, “to the extent it is relevant to the jurisdictional issues, the evidence submitted by the parties.”
White,
46 S.W.3d at 868.
Appellees’ Claims
The First Amended Original Petition
In their first amended petition, appellees allege that GBRA was negligent in creating a premise defect, specifically claiming that the decedents’ deaths were caused by a “negligent condition and/or use of tangible personal and/or real property.” The petition also claims that the saltwater barrier created a special defect. Appellees further allege that GBRA had a duty to inspect and maintain the saltwater barrier in good working condition, inspect and maintain any warning sign and any safety devices and, pursuant to section 11.050 of the Texas Water Code, have a “competent person” at the barrier at all times. The petition asserts that GBRA was aware and had notice of dangerous currents existing at the barrier, and as a result of its failure to inspect and maintain adequate warning signs or safety devices in a good working condition and to man the barrier at all times, GBRA is liable for damages. The petition further asserts that GBRA was negligent in implementing its policy of protecting the public from known dangerous conditions created by the saltwater barrier by: 1) erecting an inadequate and misleading sign which failed to properly warn of the dangers associated with the barrier; and 2) fading to erect any barriers that
would prevent boaters from being drawn into the barrier. Appellees claim that GBRA created, knew, or should have known of the unreasonable condition which posed an unreasonable risk of harm to the decedents and that GBRA did not exercise reasonable care to reduce or eliminate the risk in that GBRA did not correct or adequately warn decedents of the risk and did not have an employee at the barrier. The petition alleges that the fatal injuries were a direct result of GBRA’s negligence in: 1) creating an unsafe condition at the saltwater barrier; and 2) in failing to adequately warn decedents of the unsafe condition at the barrier.
Claims Raised
Appellees appear to attempt to raise the following types of claims: 1) use of tangible personal property; 2) condition or use of real property (e.gr., premise or special defect, including duty to warn or make safe); 3) negligent implementation of policy; and 4) negligence
per se
for violation of the Water Code.
With the exception of the final claim listed, appellees appear to attempt to raise claims that fit within the waiver of immunity provided by section 101.021(2) of the tort claims act and we will examine those first.
Appellees’ Claims under Section 101.021(2)
Under section 101.021(2) of the tort claims act, the State waives governmental immunity for “injuries arising from some condition or use of personal property” and “injuries arising from some condition or use of real property (premise defects).”
Floyd v. Willacy County Hosp. Dist.,
706 S.W.2d 731, 732 (Tex.App.-Corpus Christi 1986, writ ref d n.r.e.). Therefore we will examine if appellees’ claims fall within either of these waivers.
A Tangible Personal Property Claims
Appellees’ petition cites “a negligent condition and/or use of tangible personal and/or real property,” as responsible for causing the decedents’ deaths. The petition, however, does not plead any facts that any specific tangible personal property was in a negligent condition, or was used, and so caused the death of decedents. The only tangible items that are mentioned in the petition are: 1) the saltwater barrier; 2) dangerous currents; 3) warning signs; 4) safety devices; and 5) other barriers.
On appeal, appellees describe the saltwater barrier as real property. We agree. It is a structure affixed to the land, like a bridge or a building, and so cannot be tangible personal property.
See San Antonio Area Found, v. Lang,
35 S.W.3d 636, 640 (Tex.2000) (real property is land and generally whatever is erected or growing upon or affixed to land). The dangerous currents complained-of are clearly the dangerous condition alleged as part of the attempted premise defect claim, not the property, tangible or real, which appellees are alleging was used or which was in a negligent condition. This leaves the references to signs, safety devices and other barriers.
The first reference to any of these is appellees’ complaint of GBRA’s “failure to inspect and maintain adequate warning signs or safety devices in a good working condition” in violation of alleged duties to do so and appellees’ claim that such failure
renders GBRA “liable for all negligent acts committed by said employees and/or agents.”
This is an attempt to raise a general negligence claim and does not state a claim of use or misuse of any signs or safety devices. Nor does it raise a claim as to the condition of the signs or safety devices, which apparently did not exist.
In another part of the petition, appellees clearly reference a particular “inadequate and misleading” sign which we will assume to be tangible personal property.
See Garza v. State,
878 S.W.2d 671, 676 (Tex.App.-Corpus Christi 1994, no writ) (Dorsey, J. dissenting)(“a road sign ... is tangible personal property”);
but see contra City of Midland v. Sullivan,
33 S.W.3d 1, 10 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.)(describing road signs as tangible real property). Both the reference to this sign and one to “other barriers,” are raised as part of appellees’ claim of negligent implementation of a safety policy. The “other barriers” are cited in the context of GBRA’s
failure to use
and thus cannot support a claim for the “use” of property.
Kassen v. Hatley,
887 S.W.2d 4, 14 (Tex.1994) (allegation of “non-use” of property cannot support a claim under the tort claims act). However, the “inadequate and misleading” sign is, from the evidence before us, actual tangible property that was allegedly in use that day. We will therefore consider the claim regarding the sign under our discussion of negligent implementation
infra.
B. Condition or Use of Real Property
I. Non-Premise Defect Claims
a.
Can an action be brought for “condition or use" of real property distinct from a premise defect claim?
From the inception we are faced with the question of whether a claim complaining of the condition or use of real property can be raised separately from a claim of a premise defect. Some courts have specifically held that it may not.
Laman v. Big Spring State Hosp.,
970 S.W.2d 670, 671-72 (Tex.App.-Eastland 1998, pet. denied) This Court has also held that where the claim is for an unsafe condition upon land, the cause of action is for a premise defect, even if the petition claims a “use of real property.”
Univ. of Texas Pan American v. Valdez,
869 S.W.2d 446, 450 (Tex.App.Corpus Christi 1993, writ denied). This very question was raised in an
amicus curiae
brief filed by the state attorney general in
Dallas County MHMR v. Boss-ley,
citing to
Valdez,
but the supreme court declined to consider the question.
Dallas County MHMR v. Bossley,
968 S.W.2d 339, 341 (Tex.1998).
Likewise, we need not determine this issue because, despite appellees’ claim that “decedents’ deaths were caused by a negligent condition and/or the use of tangible personal and/or real property,” we do not find any specific allegations of the use of a particular piece of real property in a particular way or a condition of the property that is not part of a premise liability claim. Although the appellees’ brief on appeal claims that the gates of the barrier were used and thus created the dangerous currents, and that the use of the salt water barrier allowed the defendants to be pulled into the barrier, such a claim is not raised in the pleadings on file before this Court. There is a claim in the petition that GBRA created an unsafe condition
at the barrier
but appellees do not allege that the barrier created the unsafe condition. The only possible reference to use of real property is the claim that the barrier created a special defect. Because we find such a
claim legally impossible (see discussion of special defects, infra), we do not consider it to raise a claim regarding the use of real property. Similarly, there is no complaint that the barrier was in a defective or inadequate condition.
See Salcedo v. El Paso Hosp. Dist,
659 S.W.2d 30, 32 (Tex.1983) (complaint of “some condition” requires an allegation of defective or inadequate property). Rather, we find that the claims related to real property all complain of some sort of premise defect related to a dangerous condition, namely the currents and the failure to correct and/or warn of the same.
II. Special Defect/PRemise Defect Claims
a.
Generally
The Texas Tort Claims Act recognizes liability for two types of dangerous conditions of real property — premise defects and special defects. Tex. Civ. Peac. & Rem.Code Ann. § 101.022 (Vernon 1997). Where it is asserted that the injury is caused by a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Tex. Civ. Peac. & Rem.Code Ann. § 101.022(a) (Vernon 1997). Thus the government’s only duty is not to injure the claimant willfully, wantonly, or through gross negligence.
State Dep’t of Highways and Pub. Transp. v. Payne,
838 S.W.2d 235, 237 (Tex.1992) (op. on reh’g);
State v. Tennison,
509 S.W.2d 560, 562 (Tex.1974). The exception to this rule is that, where a landowner has actual knowledge of a dangerous condition, and the licensee does not, the landowner then has the duty either to warn the licensee or to make the condition reasonably safe.
Tennison,
509 S.W.2d at 562.
However, the limitation of the government’s duty to claimants, to that duty owed by a private landowner to a licensee, does not apply to the government’s duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to warn of the absence, condition, or malfunction of traffic regulators. Tex. Civ. PRAC. & Rem.Code Ann. § 101.022(b) (Vernon 1997). Where there exists a special defect, the government unit owes the same duty to users as a private landowner owes to an invitee.
Payne,
838 S.W.2d at 237. That is, the government unit must exercise ordinary care to protect the user from a dangerous condition of which the government unit is or reasonably should be aware.
Id.
A special defect is generally limited to those conditions which occur on the surface of the road, or pose a threat to ordinary users of the roadway.
Id.
at 238-39.
The question of whether an alleged defect is a special defect or premise defect, and thus what duty is owed, is a question of law and therefore considered de novo.
State v. Rodriguez,
985 S.W.2d 83, 85 (Tex.1999).
b.
Special or Premise Defect?
Appellees’ petition references both a premise defect and a special defect. Specifically, it claims that there was a premise defect and that the saltwater barrier created a special defect. Although appellees do not directly state in the petition what they claim the premise defect was, they do mention dangerous currents alleged to exist at the saltwater barrier.
A dangerous condition need not have been created or caused by the government unit to constitute a special defect.
County of Harris v. Eaton,
573 S.W.2d 177, 179 (Tex.1978). However, the condition needs to be analogous to and of the same degree as “excavations or obstructions on highways, roads, or streets.” Tex. Civ. PRAC.
&
Rem.Code Ann. § 101.022(2)
(Vernon 1997);
Johnson v. Tex. Dep’t of Transp.,
905 S.W.2d 394, 899 (TexApp.-Austin 1995, no writ). It must present “an unusual and unexpected danger to ordinary users of roadways.”
Payne,
838 S.W.2d at 238.
Neither the saltwater barrier nor the currents are of the nature or degree of excavations or obstructions on highways, roads, or streets and hence are not special defects.
Id.; see also Payne v. City of Galveston,
772 S.W.2d 473, 477 (Tex.App.Houston [14th Dist.] 1989, writ denied)(seawall not a special defect as a matter of law and in fact, not a
defect
but a
condition
of real property). Nor could the saltwater barrier create a special defect as it could not create an obstruction on a highway, road, or street. Accordingly, ap-pellees’ special defect claim cannot stand.
c.
Liability under the Premise Defect Standard
Appellees’s only possible claim under this section, therefore, would be that of a premise defect. Assuming that the premise defect alleged is the “dangerous currents” alleged to be caused by the saltwater barrier, we consider then the duty imposed on the government as to a premise defect in order to determine whether such a claim has been pled.
As previously stated, in the case of a premise defect, the ordinary duty of a governmental unit is only to not willfully, wantonly, or through gross negligence injure those using its land.
Payne,
838 S.W.2d at 237. An exception exists, however, in such cases where the governmental unit had actual knowledge of a dangerous condition, and the person on the land did not.
Tennison,
509 S.W.2d at 562. In those cases, there then exists the further duty to exercise reasonable care to warn or make safe the dangerous condition.
Id.
In the context of a challenge to jurisdiction, therefore, the issue presented in reference to the Tennison exception is whether the plaintiff has pled that the governmental unit had actual knowledge of the dangerous condition and the plaintiffs did not. Appellees have so pled and thus have met that pleading requirement. They have also pled that there was a dangerous condition which the governmental unit failed to warn of or correct and that such condition was a proximate cause of the injuries and damages.
Payne,
838 S.W.2d at 237. Thus while appellees did not plead the general standard (willful, wanton, or gross negligence), they did plead the requirements of the Tennison exception.
d.
The Recreational Use Statute
However, GBRA argues that civil practice and remedies code section 75.002(c)(2), commonly referred to as the “recreational use statute,” limits the government’s duty to that owed to a trespasser and thus the only claim that could be made against GBRA would be for willful, wanton, or grossly negligent conduct.
See
Tex. Civ. PRAC. & Rem.Code Ann. § 75.002(c)(2)(Vernon Supp.2002). GBRA further argues that appellees failed to plead willful, wanton, or grossly negligent conduct and that the facts alleged in the petition affirmatively demonstrate that no
facts could be alleged that would state such a claim. Appellees respond that the recreational use statute does not apply because the land involved was not agricultural and hence the statute applies only if the owner gave permission to enter the premises and, in this case, appellees had a right to be present and no permission was required.
While the legislature has clearly made the recreational use statute applicable to lands owned by governmental units,
and assuming that appellees are correct in their assertion that the lands surrounding the waters are not agricultural, we face the question of the “permission” requirement.
Appellees argue that since the waters upon which this occurred were navigable, they were State waters and appellees had a right to navigate the waters without seeking permission from GBRA.
See Carrithers v. Terramar Beach Cmty. Improvement Ass’n,
645 S.W.2d 772, 774 (Tex.1983)(the waters of public navigational streams are held by the State in trust for the public, primarily for navigation purposes). Appellees’ argument then, in essence, would exempt navigable waters from the application of the recreational use statute. We cannot countenance this interpretation. The plain language of the statute reveals the opposite intent. The very definition of “premises” for the purpose of the recreational use statute specifically includes “water” and “watercourse.” Tex. Civ. Prac. & Rem.Code Ann. § 75.001(2) (Vernon Supp.2002). The definition of “recreation” in the statute includes swimming, fishing, boating, waterskiing and other water sports. Tex. Civ. Prac.
&
Rem.Code Ann. § 75.001(3)(B), (C), (D) <& (K) (Vernon Supp.2002). The legislature clearly intended for navigable waters to be covered by the recreational use statute.
Moreover, appellees cannot both claim that the premises were State waters and yet hold GBRA liable for a defect in those same waters.
Tex. Parks & Wildlife Dep’t v. Wilson,
991 S.W.2d 93, 96-7 (Tex.App.Austin 1999),
pet. denied,
8 S.W.3d 634 (Tex.1999) (per curiam) (where decedents drowned in river adjoining Department land, there was no legal duty owed by the Department to decedents for a premise defect because Department did not own the river). If the Bayou is State waters, then appellees must sue the State for defects in such waters, not GBRA. If, on the other hand, GBRA has control over the Bayou, then GBRA has the right to grant or deny permission to persons to enter the waters under its control.
In fact we note that GBRA’s enacting legislation provides GBRA the authority to regulate navigation in the waters under their control. Act of May 21, 1975, 64th Leg. R.S., Ch. 433, 1975 Tex. Gen. Laws 1149, 1149. The fact that navigable streams are held in trust for the benefit of the public does not mean that the State or a duly-delegated governmental agency has no authority to restrict navigation on the same.
Tex. River Barges v. City of San Antonio,
21 S.W.3d 347, 355 (Tex.App.-San Antonio 2000, pet. denied). To the contrary, states and their delegates may exert police power over the navigable waters in their boundaries, including the regulation of navigation on navigable streams.
Id.
Accordingly, GBRA had the authority to restrict navigation on the waters under its control. We find that the recreational use statute applies and that GBRA owed only the duty of a landowner to a trespasser-not to injure willfully, wantonly or with gross negligence. Tex. Crv. Prac.
&
Rem.Code Ann. § 75.002(c)(2)(Vernon Supp.2002). There
was therefore no duty to warn of, or correct, any dangerous condition and appel-lees were required to allege facts demonstrating that the deaths arose from the willful, wanton, or grossly negligent conduct of GBRA.
City of Lubbock v. Rule,
68 S.W.3d 853, 859 (Tex.App.-Amarillo 2002, no pet. h.).
Moreover, the record before us indicates that while boating was apparently permitted on Goff Bayou for recreational purposes, and that it was for those purposes that decedents were in Goff Bayou, the area into which decedents entered and drowned was restricted from the public.
Thus even if the recreational use statute did not apply, the decedents would only have been owed the duty due to trespassers.
Appellees admit that no claim of the violation of a landowner’s duty to a trespasser was made in their pleadings, but argue that they should be allowed to amend their pleadings to state such a violation. We consider, therefore whether the petition might be amendable to raise a claim of willful, wanton, or gross negligence under the factual situation alleged.
Gross negligence involves proof of two elements: (1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
See Mobil Oil Corp. v. Ellender,
968 S.W.2d 917, 921 (Tex.1998) (citing
Transp. Ins. Co. v. Moriel,
879 S.W.2d 10, 23 (Tex.1994)). In reference to the first requirement, the “extreme risk” means the likelihood of serious injury to the plaintiff.
Id.
In reference to the second requirement, ordinary negligence rises to the level of gross negligence when it can be shown that the defendant was aware of the danger but his acts or omissions demonstrated that he did not care to address it.
Louisiana-Pacific Corp. v. Andrade,
19 S.W.3d 245, 246-47 (Tex.1999);
Burk Royalty Co. v. Walls,
616 S.W.2d 911, 922 (Tex.1981). The facts as alleged in this case, and the evidence presented in support and against the plea to the jurisdiction, do not seem to support a claim for gross negligence. Appellees allege no singular action by anyone that was willful or wanton and the very fact that there was a sign warning boaters of the dangerous currents, whether inadequate or misleading or not, would appear to negate a claim of conscious indifference to the rights, safety or welfare of others. Moreover, as discussed
infra,
the claims that GBRA failed to correct or warn of the dangerous condition, would be barred by the discretionary-function exemption of the tort claims act.
See
Tex. Civ. Pkac. & Rem.Code Ann. § 101.056 (Vernon 1997);
Tex. Dep’t of Transp. v. Ramirez, 74
S.W.3d 864, 866 45 Tex. Sup.Ct. J. 594 (Tex., 2002) (failure to correct or warn decedent of a defect in a roadway related to the design and lack of safety features which were discretionary decisions for which the State retains immunity under the discretionary-function
exception).
Nevertheless, the mere failure of a petition to state a cause of action does not justify dismissal for want of jurisdiction. Bybee, 331 S.W.2d at 917. If the pleadings do not affirmatively show incurable defects in jurisdiction, we must allow a plaintiff an opportunity to amend and allege facts demonstrating jurisdiction, if he can, before dismissing the cause.
Brown,
at 559. We do not conclude that the pleading affirmatively demonstrates incurable defects in jurisdiction.
C. Negligent Implementation of Policy
Appellees also make a claim of the negligent implementation of GBRA’s safety policy by erecting an “inadequate and misleading sign.”
The tort claims act does not apply to a failure to perform an act where there is no legal requirement for the State to perform such act or where the government’s decision not to perform an act is within its discretion. Tex. Civ. PRAC. & Rem.Code Ann. § 101.056 (Vernon 1997). This has been interpreted as exempting discretionary policy decisions from the tort claims act waivers, while allowing a waiver for decisions made at an operational level.
Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland,
781 S.W.2d 427, 433 (Tex.App.-Fort Worth 1989, writ denied). In other words, sovereign immunity is preserved for the negligent discretionary formulation of policy, but not for the negligent implementation of the policy at the operational level.
City of Brownsville v. Alvarado,
897 S.W.2d 750, 754 (Tex.1995);
State v. Terrell,
588 S.W.2d 784, 787-88 (Tex.1979).
The negligent-implementation theory of liability does not itself waive immunity.
City of Orange v. Jackson,
927 S.W.2d 784, 786 (Tex.App.-Beaumont 1996, no writ). It arises only after a plaintiff has established a waiver of immunity under some other provision of the Texas Tort Claims Act.
Id.
Accordingly, a plaintiff has to state a waiver of immunity under some provision of section of 101.021 of the civil practice and remedies code before he can invoke a claim of negligent implementation of policy.
Id.
We have previously noted that appellees have attempted to raise a claim for the use of tangible personal property, namely, an “inadequate and misleading sign.” However, we must further consider whether the claim made falls within the discretionary-function exclusion.
a.
Negligent Implementation and Discretionary Action
As discussed,
supra,
a governmental unit may be held liable for the negligent implementation of policy but not the negligent formation of policy.
Terrell,
588 S.W.2d at 788. The formulation of policy includes the determining of the method of performing the decided action.
Id.
Thus, for the purpose of the discretionary action exception, the method of performing an action is synonymous with the decision or plan as to how the act is to be performed and thus exempt.
Id.
Appellees do not contest that, as to the matter of decisions to warn or not warn of dangerous conditions, the courts have held that such decisions were discretionary and so exempt from the waivers of the tort claims act. However, they argue that, in the instant case, they are not attacking the decision to warn but the means of carrying out that decision. Specifically, they claim that GBRA formulated “a policy to protect the public from the dangerous condition existing at the salt barrier” but negligently implemented it by erecting an “inadequate and misleading sign.”
However appellees’ arguments do not take into account the
Terrell
definition of formulation which expressly includes the selection of method.
Id.
In the specific area of warnings and means of warning, the supreme court has held that not only is the decision to warn a discretionary one, but the decision as to the method of warning is likewise discretionary.
State v. San Miguel,
2 S.W.3d 249, 251 (Tex.1999)(decision to use barrels and signs as a warning device was a discretionary policy decision);
State v. Rodriguez,
985 S.W.2d 83, 86 (Tex.1999)(claim that detom* was unreasonably dangerous and had inadequate warning signs did not state a claim under the tort claims act because the design of the detour was a discretionary act). Appellees concede that GBRA had the discretion to not provide any warning at all, and also to choose to use a sign as a warning device, but assert that the
wording
used on the sign was negligent and not part of a policy decision and thus a negligent implementation of the safety policy.
Appellants essentially argue that once GBRA decided to warn of the danger, the
failure to utilize a means that would successfully do so
is a negligent implementation of the policy. We do not read the discretionary-function exemption, nor the cases that cite it, so narrowly. The supreme court, in holding that decisions about what kind of safety features to install on highways fall under the discretionary-function exemption has stated, “[a] court should not second-guess a governmental unit’s decision about the type of marker or safety device that is most appropriate.”
San Miguel,
2 S.W.3d at 251. Whether to use a large sign, a small sign, a yellow sign, a white sign, a sign that says “stay out” or a sign that says “danger,” would be a decision related to the method
of warning and thus the type of safety device used. To hold otherwise would basically place courts (and juries) in the position of deciding whether the governmental agency made the right decision as to
how
to warn of the danger or whether some other method
{e.g.,
a larger sign, different color, different words) would have been more appropriate — the exact review prohibited by the
San Miguel
court. Appel-lees do not allege that the sign was knocked down, obscured by brush or mud, never installed despite a specific decision to install, illegible, or otherwise negligently installed or maintained. They challenge GBRA for choosing to warn with the specific
wording
utilized on the sign which they allege was “inadequate and misleading.” GBRA’s decision to use this method of warning was discretionary and so exempt from the waiver of the tort claims act.
Id.
Appellees’ Negligence
Per Se
Claim under Water Code Section 11.050
The final attempted claim stated in the petition is that of negligence
per se
for violation of section 11.050 of the Water Code.
Tex. Water Code Ann. § 11.050 (Vernon 2000). In its final issue before us on appeal, GBRA asserts that the trial court improperly failed to grant the plea to the jurisdiction as to appellees’ claim under water code section 11.050, because such provision does not provide an independent cause of action and, even if it did, it would be barred by sovereign immunity. Appellees respond that they made no attempt to raise a separate cause of action but simply meant to allege a legal duty which they assert GBRA failed to observe, arguing that the alleged violation was negligence
per se.
Despite appellees’ assertions that they are not raising a distinct cause of action under the water code, they are obviously attempting to raise a separate claim for negligence
per se
arising out of GBRA’s failure to man the barrier in alleged violation of the statute. Without determining whether this statute is applicable to GBRA, or whether it raises an independent cause of action, we note that, even if a duty existed under this section, appellees would still have to plead a waiver of immunity as to this claimed negligence
per se. Mendez v. San Benito/Cameron County Drainage Dist. No. S,
45 S.W.3d 746, 756 (TexApp.-Corpus Christ 2001, pet. denied). Appellees did not plead any independent waiver of immunity as to such a violation, nor would such a claim fall under the “use or condition” of tangible personal or real property waiver of section 101.021(2).
See Vela v. Cameron County,
703 S.W.2d 721, 724-25 (Tex.App.-Corpus Christi 1985, writ refd n.r.e.) (failure to comply with statute requiring counties to employ lifeguards at beaches did not come within the condition or use of tangible
personal or real property waiver of sovereign immunity). Likewise, such a complaint does not raise a claim for a premise defect waiver. People are not real property nor are they part of the premises and so the lack of a person cannot be a premise defect.
See Lang,
35 S.W.3d at 640 (defining real property). Arguably, appellees might claim that the failure to man the barrier is one means by which GBRA failed to make safe the dangerous condition alleged in their premise defect claim.
However GBRA did not have a duty to warn or make safe but only owed decedents the duty owed to trespassers. We find, therefore, that appellees’ complaint of GBRA’s failure to man the barrier does not state a claim under the tort claims act, regardless of whether or not it was an applicable statutory duty.
Conclusion
We find that appellees failed to state a claim which fell within the waiver provisions of the Texas Tort Claims Act and sustain appellant’s issues on appeal. As we do not find the petition incurably defective, we must allow appellees an opportunity to amend their pleadings and allege a cause of action within the trial court’s jurisdiction.
Peek,
779 S.W.2d at 804-05. If they are unable to do so, or choose not to, then dismissal is necessary.
Tex. Ass’n of Bus.,
852 S.W.2d at 446. We therefore reverse the decision of the trial court denying the plea to the jurisdiction and remand this cause for further proceedings commensurate with this opinion.