Meredith v. Chezem

• Decision Date: 07 December 2018
• Docket Number: NO. 03-18-00256-CV,03-18-00256-CV
• Parties: Leonard Meredith and Angela Meredith, Individually and as Next Friend of Courtney Meredith, a Minor, Appellants v. Mark Chezem as Next Friend of Carli Chezem, a Minor, Appellee
• Court: Court of Appeals of Texas

Leonard Meredith and Angela Meredith,Individually and as Next Friend of Courtney Meredith, a Minor, Appellants v. Mark Chezem as Next Friend of Carli Chezem, a Minor, Appellee

NO. 03-18-00256-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

December 7, 2018

FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT

NO. 39617, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants Leonard Meredith and Angela Meredith appeal from the trial court's judgment awarding actual damages to appellee Mark Chezem for personal injuries sustained by his daughter, Carli Chezem, in an all-terrain vehicle (ATV) accident that occurred on the Merediths' property.¹ Because the recreational-use statute, see Tex. Civ. Prac. & Rem. Code §§ 75.001-.007, governs this dispute and Chezem failed to obtain a finding of gross negligence, malicious intent, or bad faith, as required by the statute, we reverse the judgment of the trial court and render judgment that Chezem take nothing on his claims.

BACKGROUND

In 2010, Mark Chezem's daughter Carli was visiting with her friend, Courtney Meredith, at the Merediths' home in Burnet County. During the visit, the twelve-year-old girls asked the Merediths if they could drive around the Merediths' property on the family's ATV.² The Merediths gave the girls permission to use the ATV but did not accompany the girls or supervise their use.

Courtney and Carli rode the ATV around the Merediths' property that morning without incident before returning to the Merediths' house to pick up two additional minor passengers, Courtney's sister Emily and her friend. Although Emily initially drove the ATV, at some point during the excursion, Courtney assumed driving duties while the other three girls, including Carli, rode in the passenger seats. As the group traveled back to the Merediths' house, Courtney made a sharp left turn, causing the ATV to flip over. Carli sustained a broken ankle and a puncture wound, requiring two surgeries and physical therapy.

In 2011, Chezem filed suit on behalf of his daughter asserting claims for negligence, negligence per se, negligent entrustment, and gross negligence. Following a jury trial, the jury found that the Merediths' negligence proximately caused Carli's injuries and that she had sustained $88,620.38 in past and future damages. The jury also expressly found that the Merediths' actions did not constitute gross negligence.

Citing the recreational-use statute, the Merediths filed a motion for entry of judgment requesting that the trial court sign a judgment declaring that Chezem take nothing on his claims.See Tex. R. Civ. P. 301 (permitting judgment notwithstanding verdict); McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 885 (Tex. App.—Dallas 2014, pet. denied) (explaining that judgment notwithstanding verdict is proper when "(1) the evidence is conclusive and one party is entitled to judgment as a matter of law, or (2) a legal principle precludes recovery"). The trial court denied the Merediths' motion, and instead signed a judgment awarding actual damages in the amount found by the jury. This appeal followed.

DISCUSSION

In their first issue on appeal, the Merediths assert that the trial court erred in denying their motion for a take-nothing judgment because, according to the Merediths, the undisputed evidence establishes that the recreational-use statute applies to Chezem's claims and required Chezem to obtain a finding of gross negligence, malicious intent, or bad faith.

The recreational-use statute was enacted to encourage landowners, both governmental entities and private parties, to open their land to the public for recreational use by limiting their potential liability for injury. See City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex. 2009). Under the statute, the owner, lessee, or occupant of agricultural land does not assure that the premises are safe for recreational purposes and does not assume responsibility for the actions taken by persons permitted or invited to enter the property for recreation.³ Tex. Civ. Prac. & Rem. Code § 75.002(b).In addition, the statute "creates a legal fiction, classifying the invited recreational user of the property as a trespasser" and, in effect, restricts landowner liability by raising the burden of proof to that of gross negligence, malicious intent, or bad faith. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); see Tex Civ. Prac. & Rem. Code § 75.002(b)(3), (d).

In this case, the parties do not dispute that the Merediths' property is "agricultural land," as that term is used in the recreational-use statute. See id. § 75.001(1)(c). In addition, the undisputed evidence establishes that Carli was an invited social guest to the Merediths' property and was "invited to enter the premises." See id. §§ 75.002(b), .003(h). Nevertheless, Chezem argues that the jury's finding of ordinary negligence is sufficient to support the trial court's judgment because the limitation on liability found in the recreational-use statute does not apply in this case for three reasons.

First, Chezem argues that the recreational-use statute does not govern this dispute because Carli was not engaged in "recreation" at the time of the accident that is the basis of his claims. The statute applies if a claimant is engaged in "recreation" on the property at the time of thealleged injury, even if the claimant entered the premises for some other purpose. City of Bellmead v. Torres, 89 S.W.3d 611, 613-14 (Tex. 2002). "Recreation" is statutorily defined and expressly includes "pleasure driving, including . . . the use of all-terrain vehicles." See Tex. Civ. Prac. & Rem. Code § 75.001(3)(H). Although Chezem does not dispute that the girls were engaged in "recreation" as they explored the Merediths' property using the ATV, he contends that at the time of the accident, the girls had already completed their excursion and were traveling back to the house, "super wet and muddy and cold." In effect, Chezem asserts that the recreational-use statute does not apply because the girls were not "pleasure driving," or otherwise engaging in "recreation," at the very moment the accident occurred.

A claimant need not be actively participating in the recreational activity at the exact moment of the injury, however, to come within the purview of the recreational-use statute. See Karl v. Brazos River Auth., 494 S.W.3d 168, 172 (Tex. App.—Eastland 2015, pet. denied). Instead, Texas courts have recognized that a person is engaged in "recreation" under the statute not only when actively participating in recreation but also when engaged in acts incidental to that recreation. See, e.g., id. (concluding that recreational-use statute applied to claimant who fell in parking lot because claimant was injured during conduct on premises related to activity of swimming); City of Plano v. Homoky, 294 S.W.3d 809, 817 (Tex. App.—Dallas 2009, no pet.) (concluding that recreational-use statute applied to claimant who fell in clubhouse after playing golf because conduct at time of injury was related to activity of golf). Here, even assuming (as Chezem implies) that Carli was not having a pleasurable experience on the ATV in the moments immediately preceding the accident, she was, at the very least, "us[ing] [an] all-terrain vehicle[]" and in the process ofconcluding her "pleasure driving" excursion. See Tex. Civ. Prac. & Rem. Code § 75.001(3)(H). Based on the undisputed evidence, we conclude that Carli was engaged in "recreation" at the time of the accident.

In his second argument, Chezem asserts that the recreational-use statute does not apply because the evidence establishes that the ATV was an "attractive nuisance." Under the attractive-nuisance doctrine, the owner or occupier of premises owes a trespassing child the same duty as an invitee with respect to a "highly dangerous artificial condition on the land." See id. § 75.007(c) (codification of common-law doctrine of attractive nuisance); Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193-94 (Tex. 1997) (outlining common-law elements of attractive nuisance (citing Restatement 2d of Torts § 339)). As Chezem points out, the statute specifically provides that "[it] does not affect the doctrine of attractive nuisance," subject to certain exceptions not at issue here. Tex. Civ. Prac. & Rem. Code § 75.003(b).

When a plaintiff asserts a claim under the attractive-nuisance doctrine, whether an attractive nuisance exists is an issue of duty and therefore a question of law for the court to decide. Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 491 (Tex. App.—Beaumont 2004, pet. denied); see Nabors v. Drilling U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (explaining that "the existence of a duty is a question of law"). On the other hand, when an attractive-nuisance exists, the determination of whether a landowner has breached his duty under the doctrine by failing to exercise reasonable care to eliminate the danger is a question of fact. See Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (explaining that in negligence claims, "resolution of a defendant's possible breach of duty is a question of fact"). Chezem does not cite, nor have we found, any authority suggesting that an ATV may be considered "a highly dangerousartificial condition on the land." See Tex. Civ. Prac. & Rem. Code § 75.007(c). Moreover, Chezem did not plead a claim based on attractive nuisance and did not request that the trial court submit a question to the jury based on an attractive-nuisance theory. See Tex. R. Civ. P. 278. Consequently, Chezem has waived that potential ground of recovery, and it cannot serve as an independent basis for affirming the trial court's judgment. See id. R. 279; Great Am. Prods. v. Permabond Int'l, 94 S.W.3d 675, 684 (Tex. App.—Austin 2002, pet. denied) (concluding that appellant who failed to plead and to submit jury question waived issue on appeal).

In his third...