The opinion
Opinion issued October 31, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00848-CV
———————————
THE CITY OF TEXAS CITY, Appellant
V.
EDITH SUAREZ, INDIVIDUALLY AND AS SURVIVING PARENT OF AS
AND SS, DECEASED, AND AS SURVIVING SPOUSE OF HECTOR
SUAREZ, DECEASED, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 11CV1108
OPINION DISSENTING FROM DENIAL OF EN BANC REVIEW
I respectfully dissent. As the panel opinion states, this wrongful death and
survival case arises from the drowning deaths of nine-year-old twin girls, AS and
SS, and their father, Hector Suarez, in Galveston Bay at a recreational area owned
and operated by the City of Texas City. Edith Suarez, the twins’ mother and
Hector’s wife, filed suit against the City asserting wrongful death and survival
claims. She alleged that the City was negligent and grossly negligent in failing to
warn of dangerous hidden undertows and rip currents in the waters of a partly
submerged beach constructed by the City next to the Dike of the City of Texas City
(“the Dike”) and opened by the City to the public for recreational purposes—rip
currents that caused the deaths of Suarez and his daughters, who had gone to the
beach for a picnic and swimming and had paid the City’s entrance fee to use the
beach.
The City filed a plea to the jurisdiction asserting that Suarez’s claims should
be dismissed because they are barred by governmental immunity. The trial court
denied the plea, and the City filed this interlocutory appeal. The panel reversed the
trial court’s order denying the City’s plea to the jurisdiction and rendered judgment
dismissing Suarez’s claims. The en banc court has denied review.
I believe this wrongful death and survivor case, arising from hidden hazards
on a manmade beach owned by the City and operated for recreational use sets
precedent in this Court that is contrary to established law on three important issues:
(1) the opinion’s construction of the waiver of immunity provisions of the
Texas Tort Claims Act, as restricted by Texas’s Recreation Use Statute
with respect to a wrongful death and survivor action predicated on
2
premise liability, effectively bars all premise liability claims on
governmentally owned and maintained premises used for recreation;
(2) it effectively reinstates for this Court prior law expressly abrogated by
the Texas Supreme Court; and
(3) it reverses the standard of review of pleas to the jurisdiction, accepting all
of the movant’s evidence of the City’s lack of knowledge of hazardous
conditions, hence lack of gross negligence, as true, while discounting all
of the nonmovant’s evidence of gross negligence as no evidence.
“I recognize that [e]n banc consideration of a case is not favored and should not be
ordered unless necessary to secure or maintain uniformity of the court’s decisions
or unless extraordinary circumstances require en banc consideration.” TEX. R.
APP. P. 41.2(c). Here, however, I believe that extraordinary circumstances require
en banc review.
I would grant en banc review and would hold that Suarez produced
jurisdictional evidence from which the trial court, the trier of jurisdictional facts,
could reasonably have concluded that the City’s actions in rebuilding the manmade
beach after Hurricane Ike greatly enhanced the already extreme danger of hidden
undertows and rip currents close to shore on the submerged beach and that the City
was grossly negligent in failing to conduct safety studies, in failing to warn of the
danger, and in charging the public to use the beach for picnicking, swimming, and
wading when the beach was not fit for those purposes. Therefore, I would hold
that the trial court did not err in holding that the City’s immunity to the wrongful
death and survivorship claims of plaintiff Edith Suarez, individually and as
3
surviving parent of A.S. and S.S., deceased, and as surviving spouse of Hector
Suarez, deceased, was waived by the premise liability exception to the Texas Tort
Claims Act as modified by the Recreational Use Statute. I would affirm the trial
court’s denial of the City’s plea to the jurisdiction, and I would remand the case for
trial on the merits.
Plea to the Jurisdiction
A. Standard and Scope of Review
A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).
When reviewing whether a plea was properly granted, we first look to the
pleadings to determine if jurisdiction is proper, construing them liberally in favor
of the plaintiff and looking to the pleader’s intent. Id. at 226. The allegations
found in the pleadings may affirmatively demonstrate or negate the court’s
jurisdiction. Id. at 226–27. “However, if a plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised,” even when those
facts may implicate the merits of the cause of action. Id. at 227. “[I]f the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228.
However, if the evidence creates a fact question as to the jurisdictional issue,
4
jurisdiction is for the fact-finder to decide. Id. at 227–28. In considering the
jurisdictional evidence, we “take as true all evidence favorable to the nonmovant”
and “indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.” Id. at 228.
B. Governmental Immunity
Generally, the doctrine of governmental immunity protects political
subdivisions, such as cities, from suit and liability. Harris Cnty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 694 n.3 (Tex. 2003). Immunity from suit, as distinguished from immunity
from liability, deprives a trial court of subject matter jurisdiction unless the
government has consented to being sued. Miranda, 133 S.W.3d at 224; Tex. Dep’t
of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The governmental entity’s
consent to suit allows the trial court to exercise jurisdiction over the lawsuit. See
Jones, 8 S.W.3d at 638. A plaintiff bears the burden to affirmatively demonstrate a
trial court’s jurisdiction by alleging a valid waiver of immunity, which may be
either by a reference to a statute or by express legislative permission. Id.
1. Texas’s Wrongful Death Statute
Suarez brought her claims pursuant to Texas’s Wrongful Death Statute,
which provides, “A person is liable for damages arising from an injury that causes
an individual’s death if the injury was caused by the person’s or his agent’s or
5
servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” TEX. CIV.
PRAC. & REM. CODE ANN. § 71.002(b) (Vernon 2008). The statute defines
“person” to mean “an individual, association of individuals, joint-stock company,
or corporation or a trustee or receiver of an individual, association of individuals,
joint-stock company, or corporation.” Id. § 71.001(2) (Vernon 2008). The statute
further defines “corporation” to include a municipal corporation; that is, a city. Id.
§ 71.001(1). The Wrongful Death Statute is not sufficient, by itself, however, to
waive a city’s immunity to suit. To waive immunity, a statute must contain a clear
and unambiguous expression of waiver. Rolling Plains Groundwater
Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (citing
TEX. GOV’T CODE § 311.034 (Vernon 2011) and Taylor, 106 S.W.3d at 696).
The Wrongful Death Statute expressly states that it applies only if the
individual injured would have been entitled to bring an action for the injury if the
individual had lived. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003(a) (Vernon
2008). Here, AS, SS, and Hector Suarez would have been entitled to bring an
action against the City if they had lived if they first showed either (1) that the City
was performing a proprietary function in operating the manmade beach as a
recreational facility or (2) that, even though the City was performing a
governmental function in operating the manmade beach, its immunity from suit
was waived by its actions. See Miranda, 133 S.W.3d at 224–25 (discussing
6
waiver of immunity in Texas Tort Claims Act). Because I believe the City’s
immunity to Suarez’s claim for damages is waived by Tort Claims Act 1 section
101.021(2), governing premise liability, as modified by Texas’s Recreational Use
Statute,2 even if the City’s operation of the beach is a governmental function, I
would not address Suarez’s argument that the City’s operation of the beach is a
proprietary function.
2. Texas’s Tort Claims Act and Recreational Use Statute
Suarez contends that the dangerous condition of the Texas City manmade
beach created a duty of ordinary care on the part of the City either to warn of the
condition or to make the beach reasonably safe for use as a recreational facility;
that is, she raises a premise defect claim against the City. Suarez claims that the
Tort Claims Act waives immunity for wrongful death caused by a premise defect.
She further argues that, even if the Recreational Use Statute restricts the duty owed
by a governmental entity for premise liability to the duty owed to a trespasser,
rather than an invitee or licensee, and even if it restricts the Tort Claims Act’s
waiver of the governmental entity’s immunity for its actions to acts that are wanton
and willful or grossly negligent, the City’s immunity to her claims is waived under
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (Vernon 2011 & Supp.
2012).
2
See id. §§ 75.001–.003 (Vernon Supp. 2011 & Supp. 2012).
7
controlling Texas Supreme Court law because the City acted with gross
negligence. I agree.
The Tort Claims Act provides a limited waiver of governmental immunity
from suit for certain tort claims. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 101.021, 101.025 (Vernon 2011). The Act includes, among other things, a
limited waiver of the state’s immunity from suits alleging personal injury or death
caused by premise defects.3 Id. §§ 101.021(2), 101.022 (Vernon 2011); City of
Dallas v. Giraldo, 262 S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.).
Section 101.022 of the Tort Claims Act provides, in relevant part:
[I]f a claim arises from a premise defect, the governmental unit
owes to the claimant only the duty that a private person owes to a
licensee on private property, unless the claimant pays for the use of
the premises.
TEX. CIV. PRAC. & REM. CODE § 101.022(a).
For the Tort Claims Act’s limited waiver of sovereign immunity for a
premise defect to apply, the plaintiff must prove: (1) the condition of the premises
3
Suarez also alleged in her petition that her claim, in part, arose from a special
defect in addition to a premise defect. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.022(b) (Vernon 2011). Whether a condition is a premise defect or a special
defect is a question of law for the court to decide. City of Dallas v. Giraldo, 262
S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.). “Special defects” under the
Tort Claims Act are “excavations or obstructions on highways, roads, or streets.”
Id. at 870. I would hold that, as a matter of law, Suarez’s claim is not a special
defect claim but a premise defect claim. See City of Dallas v. Reed, 258 S.W.3d
620, 622 (Tex. 2008) (“Special defects are defects of the same kind or class as
‘excavations or obstructions on highways, roads, or streets.’”).
8
created an unreasonable risk of harm to the licensee or invitee; (2) the owner failed
to exercise ordinary care to protect the licensee or invitee from danger; and (3) the
owner’s failure was a proximate cause of injury to the licensee or invitee. Giraldo,
262 S.W.3d at 869. A premise defect claim is based on the property itself being
unsafe. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
In premise defect cases, the governmental unit owes “only the duty that a
private person owes to a licensee on private property, unless the claimant pays for
the use of the premises” in which case the duty owed is that owed to an invitee.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a); Shumake, 199 S.W.3d at 283 &
n.3; see City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no
pet.); Garcia v. State, 817 S.W.2d 741, 742 (Tex. App.—San Antonio 1991, writ
denied). A personal injury claimant alleging a premise defect claim against a city
with respect to a licensee must plead and prove either (1) that the city’s conduct
was “willful, wanton, or grossly negligent” or (2) that “the city had actual
knowledge of the dangerous condition, the claimant did not, and the city failed to
warn of the condition or make the condition reasonably safe.” City of Weston v.
Gaudette, 287 S.W.3d 832, 836 (Tex. App.—Dallas 2009, no pet.); see Tex. S.
Univ. v. Gilford, 277 S.W.3d 65, 69–70 (Tex. App—Houston [1st Dist.] 2009, pet.
denied) (holding that limited duty owed to licensee requires that landowner either
warn licensee of, or make reasonably safe, dangerous condition of which
9
landowner has actual knowledge and licensee does not; but if plaintiff pays fee,
duty owed is that of invitee and owner is required to reduce or eliminate
unreasonable risk of harm created by premise condition of which owner is or
reasonably should be aware) .
The Tort Claims Act modifies a governmental unit’s waiver of immunity,
however, in a premise liability case in which the plaintiff was injured while
engaging in a recreational activity within the scope of the Recreational Use Statute.
Miranda, 133 S.W.3d at 225 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.058
(Vernon 2011)); see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001–.003
(Vernon 2011 & Supp. 2012). In such a case, the Recreational Use Statute controls
over the Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(g)
(Vernon 2011) (providing that chapter 75 controls over chapter 101 to extent
chapter 75 limits liability of governmental unit under circumstances in which
governmental unit would be liable under chapter 101); id. § 101.058 (Vernon
2011) (providing same).
The Recreational Use Statute provides:
If an owner, lessee, or occupant of real property . . . gives permission
to another to enter the premises for recreation, the owner, lessee, or
occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater
degree of care than is owed to a trespasser on the premises; or
10
(3) assume responsibility or incur liability for any injury to any
individual or property caused by any act of the person to whom
permission is granted.
TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c) (Vernon 2011).
Section 75.002(d) of the statute provides that subsection (c) “shall not limit
the liability of an owner, lessee, or occupant of real property who has been grossly
negligent or has acted with malicious intent or in bad faith.” Id. § 75.002(d).
The statute’s definition of “recreation” is a non-exclusive list of activities,
including, inter alia, hunting, fishing, swimming, boating, camping, picnicking,
hiking, nature study, “waterskiing and other water sports,” and “any other activity
associated with enjoying nature or the outdoors.” Id. § 75.001(3).
Under section 75.002(c), when injury or death results on government-
owned, recreational land, the Recreational Use Statute limits the governmental
unit’s duty to that owed by a landowner to a trespasser. TEX. CIV. PRAC. & REM.
CODE ANN. § 75.002(c)(2), (f). Thus, the Texas Supreme Court has defined the
duty owed by a government entity to a person who is injured or dies on
government-owned recreational land as the duty “to refrain from injuring the
trespasser ‘willfully, wantonly, or through gross negligence.’” Shumake, 199
S.W.3d at 285 (quoting Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193
(Tex. 1997)); see TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(d); see also
Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659 (Tex. 2007) (holding
11
that section 75.002(d) “limits the landowner’s liability by raising the plaintiff’s
burden of proof to that of gross negligence, malicious intent, or bad faith”).
The Texas Legislature has defined gross negligence as an act or omission
“which when viewed objectively from the standpoint of the actor at the time of its
occurrence involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others” and of which risk “the actor has actual,
subjective awareness . . . but nevertheless proceeds with conscious indifference to
the rights, safety, or welfare of others.” TEX. CIV. PRAC. & REM. CODE
§ 41.001(11) (Vernon 2008). This definition is used to determine waiver of
immunity under the Recreational Use Statute. See Flynn, 228 S.W.3d at 660
(quoting statute); Shumake, 199 S.W.3d at 287 (citing Transp. Ins. Co. v. Moriel,
879 S.W.2d 10, 21 (Tex. 1994) (defining gross negligence for purposes of statute
as “an act or omission involving subjective awareness of an extreme degree of risk,
indicating conscious indifference to the rights, safety, or welfare of others.”);
Miranda, 133 S.W.3d at 225. Gross negligence, as applied under the Recreational
Use Statute, involves two components: (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
12
proceed in conscious indifference to the rights, safety, or welfare of others.
Miranda, 133 S.W.3d at 225.
The Supreme Court of Texas has explained: “[W]hat separates ordinary
negligence from gross negligence is the defendant’s state of mind; in other words,
the plaintiff must show that the defendant knew about the peril, but [its] acts or
omissions demonstrate that [it] did not care.” Louisiana–Pacific Corp. v. Andrade,
19 S.W.3d 245, 246–47 (Tex. 1999); see also City of Corsicana v. Stewart, 249
S.W.3d 412, 414–15 (Tex. 2008) (holding that “actual knowledge” element of
premise defect cause of action requires knowledge that dangerous condition
existed at time of accident).
In Shumake, the Texas Supreme Court expressly abrogated a line of
intermediate court of appeals’ cases holding that the Recreational Use Statute does
not permit a premise defect claim against the state. Shumake, 199 S.W.3d at 282.
The court held that a landowner may not be held grossly negligent “for failing to
warn of the inherent dangers of nature,” but “a landowner can be liable for gross
negligence in creating a condition that a recreational user would not reasonably
expect to encounter on the property in the course of the permitted use.” Shumake,
199 S.W.3d at 288 (emphasis added). The supreme court quoted Golding v. Ashley
Cen. Irrigation Co. for the proposition,
If [] a landowner has knowledge of an uncommon, hidden peril or
danger on the land that is not inherent in the use to which the land is
13
put and that would not be reasonably discovered or avoided by a
trespasser, the landowner’s failure to warn or guard against such a
danger could amount to willful, wanton, or malicious inaction.
Id. (citing Golding, 902 P.2d 142, 134 (Utah 1994)).
The court also cited City of Houston v. Cavazos for the proposition that
“knowledge that numerous people had drowned over a period of years at the same
artificially created, but hidden, hazard without any action by city to warn or
remedy the hazard was some evidence of gross negligence.” Id. (citing Cavazos,
811 S.W.2d 231, 234–35 (Tex. App.—Houston [14th Dist.] 1991, writ dism’d)).
In that case, the City of Houston was found grossly negligent, supporting a suit for
damages for wrongful death against the city by the parents of a child who had
drowned in a city park. 811 S.W.2d 231, 232 (Tex. App.—Houston [14th Dist.]
1991, writ dism’d). The child slipped and fell while wading along a concrete slab
covered with a foot to a foot and a half of water in a city park behind Lake
Houston Dam where people stood to fish. Although the water at the edge of the
slab dropped off to a depth of fifteen feet, the drop-off could not be seen by people
wading across the slab. The Cavazos family saw numerous people walking across
the slab and assumed it was safe to cross. Id. The younger brother, who was
crossing with his older brother and uncle, “slipped, fell, was carried into the deep
water and drowned.” Id. The expert witness for the Cavazos family testified that
“despite the appearance of safety, the slab was extremely dangerous because of the
14
swift current running across it, the slippery nature of parts of the slab, and the
inability to see the dramatic change in depth at the edge of the slab.” Id.
Similarly, the claim in Shumake arose from the recreational use of a state
park that resulted in the drowning death of a child swimming in a park river who
was sucked underwater by a powerful undertow and trapped in a man-made
culvert. Id. at 281. The supreme court held that the pleadings were sufficient to
state a premise liability claims under the Recreational Use Statute, and thus, to
waive the state’s sovereign immunity. Id. at 288.
By contrast, in Flynn, decided a year after Shumake, the supreme court held
that the plaintiff failed to meet the standard for establishing a premises liability on
recreational premises. 228 S.W.3d at 659–60. In that case, the plaintiff bike rider
sued for injuries sustained when she was hit by a stream of water from an
oscillating sprinkler while riding her bike on a trail on a university campus, fell,
and was injured. Id. at 655. The supreme court reiterated its holding in Shumake
that “the recreational use statute does not foreclose premise defect claims, but
rather limits the landowner’s liability by raising the plaintiff’s burden of proof to
that of gross negligence, malicious intent, or bad faith.” Id. at 659 (citing
Shumake, 199 S.W.3d at 285–87). It emphasized that “gross negligence is not
synonymous with negligence, but rather requires the existence of an extreme risk
15
of serious injury or death, evaluated both objectively and subjectively.” Id. at 660
(citing Shumake, 199 S.W.3d at 287).
The court commented that the allegations failed to demonstrate “that the
sprinkler presented an extreme risk,” that the university “was aware of the risk,” or
that it “was consciously indifferent to the sprinkler’s capacity to inflict serious
injury.” Id. Moreover, the plaintiff conceded that she was aware of the sprinkler
before she encountered it, and “the recreational use statute does not obligate a
landowner to warn of known conditions.” Id. Thus, the plaintiff’s “conclusory
allegations” of gross negligence were not sufficient to meet the standard imposed
by the Recreational Use Statute or to rebut the jurisdictional evidence attached to
the university’s motion to dismiss. Id.
Two years later, in City of Waco v. Kirwan, the supreme court further
clarified the duty owed by a governmental entity as a landowner to a recreational
user of the land. In Kirwan, a college student was sitting on a rock cliff watching
boat races in a municipal park located in the City of Waco when the cliff collapsed
beneath him, causing him to fall sixty feet to his death. 298 S.W.3d 618, 620 (Tex.
2009). The cliff was a naturally occurring cliff consisting of loose rock and natural
cracks, and the city had not “altered, modified, or excavated the limestone cliff
beyond the stone wall in front of the cliff,” which had been constructed by the
City. Id. A sign in front of the cliff stated, “FOR YOUR SAFETY DO NOT GO
16
BEYOND WALL.” Id. The student had crossed the wall and was beyond the
warning sign when he fell to his death. Id.
The supreme court held that the City of Waco retained its governmental
immunity in connection with a premise liability claim brought by the student’s
mother based solely on the collapse of the naturally occurring cliff. Id. at 628–29.
It stated that a landowner does not generally owe a duty “to protect or warn against
the dangers of natural conditions on the land.” Id. at 626. But it also emphasized
what it was not holding, stating that “we do not hold that a party may never be
liable for gross negligence related to a natural condition—under some
circumstances not present in this case, a landowner may be liable.” Id. at 627.
Acknowledging that it had “previously held that the recreational use statute
imposes a duty with respect to artificially created conditions in many instances,”
the court stated, “we do not strive today to define which conditions are transformed
from ‘natural’ to ‘artificial’ due to a landowner’s modifications” because the facts
of the case did not require such a distinction. Id. It also observed that “it is
possible a duty may be imposed on a landowner who has undertaken affirmative
acts related to natural conditions, such as recommending a certain area or assuring
a patron as to the condition’s safety.” Id. The court then distinguished its earlier
holding in Shumake, noting that the claims made in Shumake—where a nine-year-
old girl was sucked into a manmade culvert by a strong undercurrent while tubing
17
in a state park and drowned—were not based on a naturally occurring condition,
unlike the claims then at issue in Kirwan—where a student fell to his death from a
naturally crumbling cliff beyond a wall he had been clearly warned not to pass.
Id. at 622 (citing Shumake, 199 S.W.3d at 281, 288).
While the panel brings this case under the rule in Kirwan, I find very little, if
any, difference between this case and Shumake and essentially no difference
between this case and Cavazos. See Shumake, 199 S.W.3d at 281, 288 (holding
that state’s sovereign immunity was waived when child drowned after being
sucked into manmade culvert by strong undercurrent while tubing in state park);
Cavazos, 811 S.W.2d at 232 (affirming finding that city was grossly negligent in
drowning death of child who fell while wading along water-covered concrete slab
in city park behind Lake Houston Dam). I would hold, like the panel, that the
Recreational Use Statute applies to limit the City’s waiver of immunity under the
Tort Claims Act for a wrongful death claim, like Suarez’s, to a premise defect
claim based on the City’s gross negligence. But I would also hold, unlike the
panel, that Suarez has clearly stated such a claim on the basis of the undisputed
jurisdictional facts. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c).
It is undisputed that the Suarez family entered the beach after paying a park
entrance fee to the City to engage in recreation, specifically, picnicking at picnic
tables provided by the City near the water, and enjoying the beach and the water.
18
The undisputed evidence showed that the beach had been opened for exactly those
purposes and that the City charged a fee for those entering the recently reopened
beach for recreational purposes after changes made to the land and water by the
City after Hurricane Ike. The record also showed that the drowning deaths
occurred less than one month after the reopening of the Dike following its nearly
two-year closure. And the evidence also showed that the Suarez twins
immediately entered the water in their street clothes upon arriving at the beach and
were wading within ten feet of the shore when they were swept away by a virulent
hidden rip current, as was their father when he attempted to rescue them. There
were no signs at the manmade beach warning of dangerous rip currents and
undertows there and elsewhere along the length of the Dike or warning of previous
drowning deaths that had occurred before the hurricane.
In her petition, Suarez alleged that the City had actual knowledge of
“dangerous currents and an unstable bottom.” She also alleged that, “[b]ecause the
area has been the subject of other drownings and swimming incidents, the [City],
in the past put up signs giving warning of undertows, deep holes and areas where
swimming was not allowed.” Suarez also averred,
There were dangerous currents and an unstable bottom that had been
created through erosion, ship movements in the Houston ship channel
and various weather conditions including hurricanes and storms over
the years. In addition, there had been numerous drownings and
swimming events to where [the City] knew dangerous conditions
existed in the area where these drownings occurred.
19
She described the conditions created by the alteration of the beach as “a perfect
storm of man-made and natural forces that converged in a way that does not occur
anywhere else on the Texas Gulf Coast” to create extremely dangerous undertows.
In addition to evidence showing that, after Hurricane Ike, the Army Corps of
Engineers had placed additional dredged sediment, or spoil, on the beach area,
Suarez relied on the affidavit of her expert, William Worsham, to explain the
unique perils existing at the beach. In his affidavit, Worsham stated, “The
presence of tidal currents and wind-generated waves interacting with the manmade
beach on the morning of October 3, 2010, caused water motion adjacent to the
beach shoreline of a magnitude sufficient to cause beachgoers standing in shallow
water to lose their footing.” He further stated that dredged sediment placed on the
beach by the Corp of Engineers, had made the submerged beach slippery.
Worsham opined that the beach had a cuspate, or scalloped, surface that generated
rip currents and that “[t]he [D]ike and manmade beach interacted with the waves
and tidal currents naturally present to cause energetic breaking waves and stronger
currents, each of which was highly variable in strength and direction.” According
to Worsham’s expert testimony, “The breaking waves produced by this interaction
were sufficient to cause young persons and adults to lose balance. The likelihood
of losing balance increased rapidly in the surf zone, such that even water depths of
less than two feet were capable of causing loss of balance.”
20
The City’s Manager of Public Works, Tom Kessler, likewise acknowledged
in his deposition that there had been other drownings at the Dike before October 3,
2010, and that some had involved children. Nevertheless, Texas City Mayor Doyle
testified in his deposition that the City had never conducted any type of analysis or
risk assessment to determine whether there were dangerous currents that could
affect swimmers at the beach area. Nor had the City commissioned any studies to
determine the effect of the Dike on wave action or other naturally occurring
conditions.
Suarez also pointed to evidence offered in the jurisdictional proceedings
showing that, before Hurricane Ike, the City had erected signs at various locations
on the Dike warning visitors to swim only in designated areas and cautioning them
to beware of undertows and rip currents. But no evidence indicated that a warning
sign had at any time before the hurricane been erected at the manmade beach that
the City had just reopened, nor was there any evidence that any warning signs were
placed at the manmade beach after the repairs were made and the beach reopened
for recreational activities. Suarez alleged, “The presence of signs in some
locations and not others is an indication that the City was aware of the danger of
rip currents.” Mayor Doyle, however, testified that he was not aware that the
presence of the Dike created rip currents, and the evidence showed that Mayor
21
Doyle was the person who made the decision with respect to what signs should be
erected and where they should be erected.
The panel discounts all of the foregoing evidence as no evidence of the
City’s gross negligence in failing to warn of dangerous hidden undertows, rip
currents, and extreme risk of drowning, as it warned elsewhere on the beach along
the Dike, where many drownings had occurred; or in failing to conduct any studies
to ascertain whether its own activities in rebuilding the beach had augmented the
danger; or in opening the beach to the public for picnicking and swimming
knowing it had failed to take any steps to ascertain the effect of its actions on the
extreme risk already posed by the natural currents or to warn or to make the beach
safe for the recreational purpose for which it was intended. Rather, the panel takes
all of the foregoing evidence as evidence of the City’s lack of knowledge of the
extreme risk of drowning caused by the dangerous hidden undertows and rip
currents occurring all along the Dike and enhanced by its own activities—rather
than as evidence of the City’s knowledge of the risk and failure to ascertain the
effect of its own activities on that risk and its nevertheless proceeding to open the
beach to the public in conscious indifference to the fate of those who accepted its
invitation to use the beach for recreational purposes.
The panel opines that rip currents are “naturally occurring marine hazards
commonly found in the ocean,” as if the City’s actions in augmenting the beach,
22
restoring the Dike, and opening the beach to the public for picnicking and
swimming were irrelevant, and that signs elsewhere warning of the rip currents
were adequate to warn families who paid their money to enter the manmade beach
to picnic and swim that they should not enter the water because of the extreme risk
involved. See City of Texas City v. Suarez, No. 01-12-00848-CV, 2013 WL
867428, at *10 (Tex. App.—Houston [1st Dist.] Mar. 7, 2013, no pet. h.) (mem.
op.). Indeed, the panel faults Suarez for failing to explain “how such warnings
indicate that the City had actual knowledge of the uniquely perilous conditions,
caused by a confluence of man-made and natural conditions, she alleged existed on
the day of the drowning.” Id. It observes that “no evidence indicated that a
warning sign had at any time in the past been erected at the beach,” and it
construes this as evidence, not of the City’s gross negligence in failing to warn of
the danger there, but as evidence of the City’s lack of knowledge of any danger
from riptides at the beach. “In short,” it concludes, “no reasonable inference may
be drawn that the City had actual awareness of the alleged unique and perilous
conditions present at beach at the time of the drownings based on its placement of
signs warning of common marine hazards at other locations on the Dike more than
two years before the drowning deaths in this case.” Id. at *11.
The panel entirely disregards the supreme court’s admonition in Kirwan that
“we do not hold that a party may never be liable for gross negligence related to a
23
natural condition—under some circumstances not present in this case, a landowner
may be liable.” 298 S.W.3d at 627. It likewise disregards the supreme court’s
statement in Kirwan that, in Shumake, it had “held that the recreational use statute
imposes a duty with respect to artificially created conditions in many instances”
and its further statement that “a duty may be imposed on a landowner who has
undertaken affirmative acts related to natural conditions, such as recommending a
certain area or assuring a patron as to the condition’s safety.” Id. It even fails to
recognize that, in this case, the governmental entity had altered the naturally
occurring rip currents and undertows by adding spoils to an already manmade
beach next to the Dike, just as, in Shumake, the city had altered the natural flow of
water in the river by diverting it through a manmade culvert that created a
powerful hidden undertow when the water was high. See 199 S.W.3d at 281. And
it disregards the virtually identical conditions described in Cavazos, in which a
child drowned after slipping on a water-covered concrete slab with a hidden fifteen
foot drop-off that he was wading along at a popular fishing spot in a city-owned
park next to a dam. Cavazos, 811 S.W.2d at 234–35. The supreme court in
Shumake cited these conditions as supporting the gross negligence claim made by
the child’s survivors against the City. See Shumake, 199 S.W.3d at 288 (citing
Cavazos, 811 S.W.2d at 234–35). The panel disregards all of these supreme court
guidelines in applying the law to this case.
24
In my view, the panel’s analysis is directly contrary to the analysis required
to determine gross negligence for purposes of the Recreational Use Statute as set
out in both statutory and case law. See TEX. CIV. PRAC. & REM. CODE § 41.001(11)
(defining gross negligence as actor’s acts or omissions which, when viewed
objectively from standpoint of actor at time of occurrence, involve extreme degree
of risk, considering probability and magnitude of potential harm to others and of
which risk actor has actual subjective awareness but nevertheless proceeds with
conscious indifference to rights, safety, or welfare of others); Flynn, 228 S.W.3d at
660; Miranda, 133 S.W.3d at 225.
Despite the testimony of the City’s own city manager, Keasler, as to
previous drownings and of Suarez’s expert, Worsham, as to the dangers created by
the City’s own activities, the panel discounts all evidence of the City’s knowledge
of dangerous conditions at the manmade beach on the ground that “[t]he record
contains no allegations or jurisdictional evidence that any drownings had been
attributed to the unique conditions described by Worsham in his affidavit.”
Suarez, 2013 WL 867428, at *11. It also states that the record contained
“affirmative evidence indicating that the City had no actual knowledge of the
unique perils Suarez alleges existed at the beach at the time of the drownings.” Id.
The panel cites, in support of its opinion, the evidence showing that the City did
not commission any studies to determine the effect of the Dike on wave action or
25
other naturally occurring conditions and Mayor Doyle’s deposition testimony that
the City had never conducted any type of analysis or risk assessment to determine
whether there were dangerous currents that could affect swimmers at the beach
area. It also cites the mayor’s testimony that he was not personally aware that the
presence of the Dike created rip currents and that he was the person who made the
decision with respect to what signs should be erected and where they should be
erected. The panel also cites evidence that the drowning deaths occurred less than
one month after the reopening of the Dike following its nearly two-year closure as
support for its conclusion that the City did not know of—and, critically, was not
grossly negligent in failing to ascertain—the extreme risk of death from drowning
when the beach was used for the purpose for which it was opened to the public.
After reviewing the jurisdictional evidence, the panel concludes that there
was “no evidence that creates a factual dispute with regard to whether the City had
actual knowledge or awareness of the alleged unique and dangerous property
condition existing at the beach at the time of the drowning deaths of Suarez’s
family,” and it states that “the record conclusively shows that the City did not have
actual awareness of the unique peril.” Id. at *12. It, therefore, holds “that Suarez
cannot bring a valid gross negligence claim under the Recreational Use Statute;
thus, the City’s immunity from liability for that claim is not waived. As a result,
the City’s immunity from suit also remains intact.” Id. I conclude exactly the
26
opposite. I am hard put to discern any difference between this case and Shumake
and Cavazos, which are almost identical on their jurisdictional facts.
I read the evidence as showing exactly the opposite of what the panel
concludes it shows. I read it as evidence that the City knew of dangerous
undertows and rip currents next to the beach that had caused drownings all along
the Dike, including the manmade beach where the Suarezes drowned. The City
nevertheless invited the public to use the reopened beach for recreational purposes,
including picnicking and swimming, in exchange for a fee, after building it up and
restoring the Dike, with conscious indifference to the effect of its actions and
omissions in exposing the public to an extreme risk of drowning, thus breaching its
duty of care for the safety of the public.
In my view, the panel opinion in this case takes exactly the position of the
line of cases abrogated by the supreme court in Shumake by labeling all hidden
undertows and rip currents as naturally occurring conditions and labeling all
evidence of the enhancement of the danger of the undertow by the City’s activity
and its indifference to the hazards and failure to warn as evidence of the City’s lack
of knowledge of the hazard, hence as no evidence of its gross negligence, and thus
as no evidence of its waiver of immunity to claims of wrongful death arising from
the use of the beach for the purpose for which it was intended, namely as a family-
27
friendly spot for picnicking, swimming, and enjoying nature. See Shumake, 199
S.W.3d at 282 (citing abrogated cases).
On the panel’s analysis, all evidence that the City ignored or made worse an
already extremely dangerous hidden condition at the manmade beach in the form
of virulent hidden undertows and rip currents without taking any steps to ascertain
the effect of its activities on the safety of the site or to make the site safe for its
intended purpose; that it then invited the public onto the beach precisely for the
purpose of picnicking, wading, swimming, and related activities in return for
payment of a fee; and that it failed to warn even of known naturally occurring
undertows and rip currents that had caused drowning deaths all along the Dike—
much less the much more dangerous riptides close to shore created by its own
activity in rebuilding the beach—is all irrelevant. Rip currents and undertows, in
the view of the panel, are natural occurrences. Thus the panel opinion recreates for
this Court, as binding authority, an analysis expressly repudiated by the supreme
court in Shumake. See 199 S.W.3d at 282, 287.
In my view, the panel’s holding is directly contrary to the directives of the
supreme court in Shumake, Flynn, and Kirwan, and also to the burden of proof
required to obtain dismissal of a cause of action on grounds of sovereign immunity
in a wrongful death and survivorship case brought subject to the Tort Claims Act
and Recreational Use Statute. By discounting all of the nonmovant’s evidence of
28
jurisdictional facts and relying solely on the conclusory and self-serving testimony
of the City’s mayor that he did not subjectively know that the City’s activities had
created an extremely dangerous condition when the beach was used for its intended
purpose, the panel reverses the standard of review of a plea to the jurisdiction
based on proof of jurisdictional facts. Indeed, its opinion is based on a standard of
review that is exactly the opposite of that mandated by the Texas Supreme Court.
See Miranda, 133 S.W.3d at 226–28.
In my view, there is ample jurisdictional evidence in the record from which
the trial court, as fact-finder, could reasonably have concluded that the City’s
immunity to Suarez’s premises liability claim against it was waived by the Tort
Claims Act as modified by the Recreational Use Statute. Under Miranda, the court
reviewing a plea to the jurisdiction is required to look first to the pleadings to
determine whether jurisdiction is proper and must construe them liberally in favor
of plaintiff, looking to her intent. See 133 S.W.3d at 226. If the pleadings do not
affirmatively demonstrate or negate the court’s jurisdiction, the court must review
the evidence, taking as true all evidence favorable to the nonmovant and indulging
every reasonable inference and resolving all doubts in favor of the nonmovant. Id.
at 228. If the evidence raises a fact question on the jurisdictional issue, the fact
finder decides that question. Id. at 227–28.
29
Instead of taking Suarez’s pleadings as true, however, and construing the
evidence liberally in her favor, the panel has done exactly the opposite. The panel
has taken the City’s evidence as true, no matter how conclusory, self-serving, and
incapable of objective proof it is; it has discounted and explained away all of
Suarez’s evidence; and it has, consequently, concluded that, as a matter of law, the
City did not waive its immunity to Suarez’s suit. Cf. id. at 228 (holding that, in
considering jurisdictional evidence evidence, reviewing court must “take as true all
evidence favorable to the nonmovant” and “indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor”). On this standard of review, no
future similar claim involving wrongful death caused by the failure to warn about
hidden natural hazards augmented by human activity on recreational property
owned by a state entity can in this Court.
I would hold that Suarez produced sufficient evidence from which the fact-
finder as to jurisdictional facts—the trial court—could reasonably have determined
that Suarez stated a claim for premise liability arising from the City’s gross
negligence in failing either to make the beach it opened to the public safe for
recreational purposes or to warn of its dangers, knowing of the extreme risk of
drowning from hidden rip currents and undertows and of its failure to warn,
knowing that it had done no safety studies of the effect of its own actions on these
dangerous hidden hazards, and knowing that the hidden rip currents and undertows
30
posed an extreme risk of danger to members of the public using the beach for its
intended purpose. Thus, I would hold that Suarez has produced sufficient evidence
as to the jurisdictional issue of waiver of immunity for the fact-finder, the trial
court, reasonably to have concluded that the City’s immunity was waived by the
Tort Claims Act as modified by the Recreational Use Statute . See Miranda, at
227-28. I would, therefore, hold that the trial court did not err when it denied the
City’s plea to the jurisdiction, and I would overrule the City’s sole issue.
Conclusion
I believe that the binding precedent created by the panel opinion in this case
presents important questions of law regarding the correct construction of a
governmental entity’s waiver of immunity to liability for a premise defect under
the Tort Claims Act as modified by the Recreational Use Statute and the proper
standard of review of evidence of jurisdictional facts regarding pleas to the
jurisdiction. I also believe that the panel opinion restores an abrogated line of
cases binding precedent in this Court and brings this Court’s construction of the
law in this important area of governmental immunity into conflict with controlling
supreme court authority. Thus, I believe this case presents extraordinary
circumstances that meet the en banc standard. See TEX. R. APP. PROC. 41.2(c).
31
I would grant en banc review, and I would affirm the order of the trial court
refusing to dismiss Suarez’s claims against the City of Texas City on a plea to the
jurisdiction, and I would remand the case for trial on the merits.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
The en banc court Chief Justice Radack and Justices Jennings, Keyes, Higley,
Bland, Sharp, Massengale, Brown, and Huddle.
Justice Keyes, dissenting from the denial of en banc review.
32