City of Waco v. Kirwan

• Decision Date: 20 November 2009
• Docket Number: No. 08-0121.,08-0121.
• Citation: 298 S.W.3d 618
• Parties: CITY OF WACO, Petitioner, v. Debra KIRWAN, Individually and as Representative of the Estate of Brad McGehee, Deceased, Respondent.
• Court: Texas Supreme Court

298 S.W.3d 618

CITY OF WACO, Petitioner, v. Debra KIRWAN, Individually and as Representative of the Estate of Brad McGehee, Deceased, Respondent.

No. 08-0121.

Supreme Court of Texas.

Argued February 3, 2009.

Decided November 20, 2009.

Charles D. Olson, C. Alfred MacKenzie, Haley & Olson, P.C., Waco, TX, for Petitioner.

Jeffery Mundy, Michael C. Singley, Mundy & Singley, LLP, Austin, TX, for Respondent.

David S. Morales, Danica Lynn Milios, Office of Attorney General of Texas, Austin, TX, for Amicus Curiae The State of Texas.

Ramon G. Viada III, Viada & Strayer, The Woodlands, TX, for Amicus Curiae Texas Municipal League.

Justice GREEN delivered the opinion of the Court, in which Justice HECHT, Justice O'NEILL, Justice WAINWRIGHT, Justice MEDINA, Justice JOHNSON, Justice WILLETT, and Justice GUZMAN joined as to Parts I-V, and in which Chief Justice JEFFERSON joined as to Part IV.

The recreational use statute, when applicable, "raises the burden of proof [in a premises liability case] by classifying the recreational user of [government]-owned property as a trespasser and requiring proof of gross negligence, malicious intent, or bad faith" on the part of the governmental unit. State v. Shumake, 199 S.W.3d 279, 281 (Tex.2006). But if the law imposes no duty upon the landowner with respect to the allegedly dangerous condition, then this burden of proof does not come into play. In this case, we consider whether a landowner owes a duty, under the recreational use statute, to recreational users to warn or protect recreational users against the danger of a naturally occurring condition or otherwise refrain from gross negligence with respect to the condition. We hold, consistent with the purpose of the statute, that a landowner generally owes no such duty, and therefore reverse the court of appeals' judgment and dismiss the case with prejudice.

I

On April 24, 2004, college student Brad McGehee was watching boat races in Cameron Park, a municipal park located in the City of Waco. McGehee was sitting on top of a cliff in an area known as Circle Point, when the plaintiffs allege the solid rock ground collapsed underneath him, causing him to fall approximately sixty feet to his death. Rusty Black, Municipal Services Director for the City of Waco, swore in an affidavit that the cliff was a naturally occurring cliff consisting of loose rock and natural cracks, that it was not created by the City of Waco, nor had the City altered, modified, or excavated the limestone cliff beyond the stone wall in front of the cliff. Attached to his affidavit were photographs of the cliff, which clearly demonstrate that the cliff is a natural condition altered only by nature. The photographs show a rock wall constructed by the City situated in front of the cliff, accompanied by a sign warning, "FOR YOUR SAFETY DO NOT GO BEYOND WALL." McGehee had crossed the wall and was beyond the warning sign when he fell to his death. There was no evidence that the City modified the cliff from which McGehee fell in any way.

On February 4, 2005, Debra Kirwan, individually and as representative of the Estate of Brad McGehee, filed a premises liability suit against the City of Waco, alleging that McGehee's death was proximately caused by the gross negligence of the City, thus waiving the City's immunity against suit and liability under the Texas Tort Claims Act. After the original petition was filed, the parties agreed to abate the case until this Court issued its decision in State v. Shumake, 199 S.W.3d 279 (Tex. 2006) — a case which addressed the recreational use statute. Following the Shumake decision, Kirwan filed an amended petition, alleging that McGehee's death and Kirwan's damages were directly and proximately caused by the gross negligence of the City of Waco in connection with the condition of its real property. See Shumake, 199 S.W.3d at 287 (defining gross negligence 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"). As evidence of the City's subjective awareness of the cliff's alleged extreme degree of risk, Kirwan relied on a student report, which had been submitted to the City, and had warned of falling rocks in Cameron Park and had recommended the use of warning signs. As evidence of the City's alleged conscious indifference to these risks, Kirwan cited the lack of any sign specifically warning of the risk of fatality resulting from the condition of the Cameron Park premise and evidence showing that despite the fact that other park patrons had died or been seriously injured by the condition of the premises, the City continued to allow park patrons into the areas with the unstable rock.

The City responded by filing a Second Amended Plea to the Jurisdiction, arguing that Kirwan's pleadings affirmatively negated the court's jurisdiction, or, in the alternative, that the undisputed evidence established a lack of jurisdiction. Specifically, the City relied on Shumake to argue that, as a matter of law, a landowner may not be grossly negligent for failing to warn of the inherent dangers of nature. The trial court agreed and signed an order dismissing the case against the City.

A divided court of appeals reversed the trial court's judgment and remanded, reasoning that "[w]e do not read Shumake to suggest that all natural conditions are per se open and obvious or that a natural condition may never serve as the basis for a premises defect claim"; instead, it held that "the recreational use statute permits premises defect claims based on natural conditions as long as the condition is not open and obvious and the plaintiff furnishes evidence of the defendant's alleged gross negligence." 249 S.W.3d 544, 552 (emphasis in original).¹ The court of appeals then concluded that Kirwan's pleadings and evidence raised fact issues as to the City's alleged gross negligence. Id. at 557. We granted the City's petition for review to determine whether, under the recreational use statute, a landowner owes a duty to warn or protect recreational users against the dangers of naturally occurring conditions. 52 Tex. Sup.Ct. J. 122 (Tex. Nov. 21, 2008).

II

A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. 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 plaintiffs and looking to the pleader's intent. Id. at 226. The allegations found in the pleadings may either affirmatively demonstrate or negate the court's jurisdiction. Id. at 226-27. If the pleadings do neither, it is an issue of pleading sufficiency and the plaintiff should be given an opportunity to amend the pleadings. Id. "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 where those facts may implicate the merits of the cause of action. Id. at 227. If that evidence creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide. Id. at 227-28. "However, if 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. In considering this 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.

The City claims Kirwan's pleadings affirmatively negate the trial court's jurisdiction because she failed to allege the City was grossly negligent "in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of permitted use." Shumake, 199 S.W.3d at 288. Alternatively, the City argues that, even if the pleadings do not affirmatively negate jurisdiction on their face, then the undisputed evidence establishes as a matter of law a lack of jurisdictional facts to support a waiver of governmental immunity. Both arguments present the question of whether, under the recreational use statute, a landowner owes a duty to warn or protect recreational users against the dangers of naturally occurring conditions on the landowner's property. The City argues that we answered this question in Shumake, where we stated:

[W]e do not hold, or even imply, that a landowner may be grossly negligent for failing to warn of the inherent dangers of nature. A landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, the owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. 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.

199 S.W.3d at 288 (citations omitted). Kirwan and the court of appeals disagree, arguing that this statement addressed open and obvious conditions only, and that Shumake merely provided examples of open and obvious conditions which happen to be naturally occurring. We agree that, while Shumake may have provided some guidance, it did not directly answer the question presented here. The condition in Shumake was not a naturally occurring one. See id. at 281 (addressing liability for danger from man-made culvert). Here, however, the facts present a condition alleged to be both natural and not open and obvious. Thus, the question left open by Shumake is properly before us.

III

A

Under the Texas Tort Claims Act, the government waives immunity from suit to the extent of liability under the Act. TEX. CIV. PRAC. & REM.CODE §...