Suarez v. City of Texas City

465 S.W.3d 623, 58 Tex. Sup. Ct. J. 1259, 2015 Tex. LEXIS 578, 2015 WL 3802865
CourtTexas Supreme Court
DecidedJune 19, 2015
DocketNo. 13-0947
StatusPublished
Cited by183 cases

This text of 465 S.W.3d 623 (Suarez v. City of Texas City) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suarez v. City of Texas City, 465 S.W.3d 623, 58 Tex. Sup. Ct. J. 1259, 2015 Tex. LEXIS 578, 2015 WL 3802865 (Tex. 2015).

Opinion

JUSTICE GUZMAN

delivered the opinion of the Court.

This interlocutory appeal involves a municipality’s plea to the jurisdiction in a [627]*627premises-liability case arising from the drowning deaths of three family members at a man-made beach. The surviving spouse and mother of the decedents alleges that the drowning deaths resulted from a peculiar risk of harm created by a con- • fluence of artificial and natural conditions at the beach and that the municipality was grossly negligent in failing to warn or protect the public against those dangers. The trial court denied the jurisdictional plea, but the court of appeals reversed and dismissed the claims for want of jurisdiction. No. 01-12-00848-CV, 2018 WL 867428, at *1 (Tex.App.-Houston [1st Dist.] March 7, 2013). At issue on appeal is whether there is some evidence of the municipality’s liability to invoke the Texas Tort Claims Act’s waiver of governmental immunity, as limited by the recreational use statute. See Tex. Civ. PRAC. & Rem. Code §§ 75.003(e)-(g), 101.021-.022, .025.

The Tort Claims Act generally waives governmental immunity in premises-liability cases when a governmental unit breaches the duty of care that a private party would owe to a licensee. Id. §§ 101.021-.022, .025. If premises are open to the public for recreational activities, however, the recreational use statute elevates the burden of proof required to invoke the Tort’ Claims Act’s immunity waiver by classifying recreational users as trespassers and requiring proof of gross negligence, malicious intent, or bad faith. Id. § 75.002; State v. Shumake, 199 S.W.3d 279, 281 (Tex.2006). In previous cases applying these statutes, we have held that landowners owe a duty to warn or protect recreational users when artificial conditions create dangerous conditions that are not open and obvious, but have no duty to warn or protect against conditions that are open or inherent, and thus obvious, regardless of whether such conditions are naturally or artificially created. Compare Shumake, 199 S.W.3d at 281-82, 288 (man-made culvert created dangerous, hidden undertow), with City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex.2009) (edge of cliff is inherently dangerous) and Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex.2007) (artificial condition was visible and known to recreational cyclist). The allegation in this case is that artificial conditions interacted with natural conditions to exacerbate and increase inherent risks well beyond what a reasonable recreational user might reasonably anticipate. This case thus involves a convergence of natural and artificial conditions as well as open, inherent, and latent dangers.

Regardless of whether a duty exists, however, when gross negligence is alleged, immunity is waived only if the governmental entity (1) knew about a condition of the property giving rise to an extreme degree of risk and (2) proceeded with conscious indifference to the rights,, safety, or welfare of others. Shumake, 199 S.W.3d at 287; see also Tex. Civ. Prao. & Rem. Code § 41.001(11). Construing the record in the light most favorable to the petitioner, as we must, there is no evidence that the municipality had knowledge of concealed conditions at the beach creating an extreme risk of harm. We therefore affirm the court of appeals’ judgment.

I. Background

The tragic deaths of a young father and his twin daughters occurred in the waters adjacent to the Texas City Dike, a man-made peninsula jutting 5.4 miles into Galveston Bay off the coast of Texas City, Texas. The Dike was initially created more than 100 years ago to help preserve the Texas City Ship Channel from excessive siltation.

Because of the ship channel’s location in Galveston Bay near an inlet to the Gulf of [628]*628Mexico, currents carry silt into the man-made channel and frequent dredging is required to keep-the water navigable. The United States Army Corps of Engineers constructed the Dike to help stop the flow of silt into the channel. Originally completed in 1915, the Dike was extended to its current length in 1984. To maintain the ship channel, the Corps of Engineers regularly dredges the channel and deposits dredged materials consisting of fine-grain sediment at a “spoil area” on the north side of the Dike. Over time, the spoil area has developed into a man-made beach.

In 1981, the State conveyed ownership of the Dike to Texas City and required that the Dike be used only for public purposes. See Act “Granting Dike” to City of Texas City, 42nd Leg., R.S., ch. 54, § 1, 1931 Tex. Spec. Laws 134, 134-35. Texas City has owned, maintained, and operated the Dike ever since. In 1963, the Texas Legislature opened the Dike up to recreational activity. Act of May 22, 1963, 58th Leg., R.S., ch. 503, § 2, 1963 Tex. Gen. Laws 1316, 1317. To facilitate access, an asphalt road stretches the length of the five-mile peninsula.

With coastal waters accessible via 10 miles of shoreline, visitors to the Dike engage in recreational activities including boating, fishing, crabbing, and swimming, in addition to non-water-related activities like picnicking, running, and cycling. Amenities at the Dike include boat ramps, piers, parking areas, picnic shelters, portable restrooms, fish-cleaning tables, and street and boat-ramp lights. At some point, signs were erected at several locations along the Dike bearing the following admonitions:

• “Warning! No Swimming [or] Diving. Beware [of] undertow and wake from passing ships.”
• “Beware [of] undertow[,] wake, rip current, and sink holes.”
• “No lifeguard on duty. Swim in designated area only.”
• “No lifeguard on duty. Swim at your own risk. Beware of undertow from passing ships.”

Some of the signs’ warnings were in English only and others were in both Spanish and English.1

On September 13, 2008, Hurricane Ike made landfall near Galveston, Texas. The hurricane caused considerable damage to the Dike — eroding beaches, damaging the roadway, upending and damaging improvements, and destroying or damaging all the warning signs. Due to ongoing repairs, Texas City closed the Dike to the public for nearly two years.

While public access was suspended, Texas City repaired or replaced the road, piers, boat ramps, picnic shelters, and lighting structures. But, not all warning signs were replaced. The only warning signs the City replaced were “monument” signs at two boat ramps that were reopened following the hurricane.2 Those signs, which are large, wooden destination markers, are similar to signs that had been in place at the same locations before the hurricane. The signs include the following [629]*629warning in English and Spanish: “Warning! No Swimming [or] Diving.” The signs also caution in English: “Beware [of] Undertow and Wake from Passing ships.” Texas City elected not to replace other warning signs destroyed by the storm.

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Bluebook (online)
465 S.W.3d 623, 58 Tex. Sup. Ct. J. 1259, 2015 Tex. LEXIS 578, 2015 WL 3802865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suarez-v-city-of-texas-city-tex-2015.