State v. Shumake

Decision Date23 June 2006
Docket NumberNo. 04-0460.,04-0460.
PartiesThe STATE of Texas and the Texas Parks and Wildlife Department, Petitioners, v. Ricky SHUMAKE and Sandra Shumake, Individually and as Personal Representative of the Estate of Kayla Shumake, Deceased, Respondents.
CourtTexas Supreme Court

Danica Lynn Milios, Greg Abbott, Attorney General, Barry Ross McBee, Edward D. Burbach, Rafael Edward Cruz, S. Ronald Keister, Office of the Attorney General, Austin, for petitioners.

Les Mendelsohn, Les Mendelsohn & Associates, P.C., Ricky J. Poole, Law Offices of Ricky J. Poole, San Antonio, for respondents.

Luis E. Fierros, Assistant City Attorney, Office of the City Attorney, Fort Worth, Houston, for Amicus Curiae City of Fort Worth.

Ramon G. Viada III, Abrams Scott & Bickley, L.L.P., Houston, for Amici Curiae Texas Municipal League and Texas City Attorneys' Association.

Justice MEDINA delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice O'NEILL, Justice GREEN, and Justice JOHNSON joined.

In this case we consider the effect of the recreational use statute on a premises liability claim against the state. TEX. CIV. PRAC. & REM. CODE §§ 75.001-.004. The Tort Claims Act waives the state's sovereign immunity for premises defects or injuries caused by "a condition or use of . . . real property." TEX. CIV. PRAC. & REM. CODE § 101.021. The State contends here, however, that the recreational use statute effectively reinstates immunity for premises liability claims arising on state-owned recreational properties. We disagree. While the recreational use statute raises the burden of proof by classifying the recreational user of state-owned property as a trespasser and requiring proof of gross negligence, malicious intent, or bad faith, it does not reinstate sovereign immunity but rather immunizes the state only to the extent of the elevated standard. Although we do not agree in all respects with the court of appeals' opinion, we agree with its judgment and accordingly affirm. 131 S.W.3d 66.

I

Blanco State Park is a picnic, camping, and recreation area owned by the State of Texas and operated by the Texas Parks and Wildlife Department. During a family visit to the park, the Shumake's nine-year-old daughter, Kayla, drowned while swimming and tubing in the Blanco River. Kayla was allegedly sucked underwater by a powerful undertow and trapped in a man-made culvert that diverted the water under a nearby park road.

The Shumakes later learned that only days before Kayla's death three other park patrons had encountered the same undertow and nearly drowned due to the same conditions. These events were communicated to both a Parks Department employee and to the Austin office of the Parks Department.

The Shumakes sued the State of Texas, claiming, among other things, that the wrongful death of their daughter was caused by a special or premises defect. They asserted that when the river's waters were high, the culvert was concealed, creating a dangerous undertow. They further alleged that the Parks Department was aware of this dangerous situation, having received reports of other recent near-drownings involving the same area, but failed to make the culvert safer or warn of the danger. The Shumakes finally alleged that the Parks Department's failure to act involved an extreme degree of risk, considering the probability and magnitude of the potential harm to swimmers and thus had breached even the modest duty of care owed to them as trespassers under the recreational use statute.

The Parks Department filed a plea to the jurisdiction, seeking dismissal of the Shumakes' claims for lack of subject matter jurisdiction, urging, among other things, that the recreational use statute barred their premises defect claims by eliminating the waiver of governmental immunity provided by the Tort Claims Act for such claims. See TEX. CIV. PRAC. & REM. CODE §§ 75.001-.004. The trial court denied the plea,1 and the Parks Department took an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).

The court of appeals affirmed the trial court's denial of the plea to the jurisdiction,2 concluding that the Shumakes had adequately pled a premises liability claim against the state within the Tort Claims Act's waiver and that the recreational use statute, although reducing the duty of care, did not otherwise affect that waiver. 131 S.W.3d at 73-81. The Parks Department now urges this Court to take jurisdiction of the interlocutory appeal because of a conflict of decisions among the courts of appeals concerning application of the recreational use statute.

II

Before reaching the merits, we must consider the issue of our own jurisdiction. Generally, a court of appeals' decision in an interlocutory appeal is final. TEX. GOV'T CODE § 22.225(b)(3). When, however, a justice in the court of appeals dissents on a question of law material to the decision in the interlocutory appeal, or when a prior decision of another court of appeals conflicts with the court's decision in the interlocutory appeal, we have jurisdiction to resolve the disagreement or conflict. TEX. GOV'T CODE §§ 22.001(a)(1), (2) and 22.225(c).

The court of appeals' decision in this case conflicts with those of four other courts of appeals which have held that the recreational use statute does not permit a premises defect claim against the state. See City of Fort Worth v. Crockett, 142 S.W.3d 550 (Tex.App. — Fort Worth 2004, pet. denied); Gray v. City of Galveston, 2003 WL 22908145 (Tex.App. — Houston [14th Dist.] Dec.11, 2003, no pet.) (memo op.); City of Lubbock v. Rule, 68 S.W.3d 853 (Tex.App. — Amarillo 2002, no pet.); Flye v. City of Waco, 50 S.W.3d 645 (Tex. App.—Waco 2001, no pet.). Three other courts of appeals have concluded, as did the court of appeals in this case, that such claims are available under the statute. West v. City of Crandall, 139 S.W.3d 784 (Tex.App. — Dallas 2004, no pet.); Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804 (Tex.App. — Corpus Christi 2004, no pet.); City of Houston v. Cavazos, 811 S.W.2d 231 (Tex.App. — Houston [14th Dist.] 1991, writ dism'd). We thus have jurisdiction to resolve the conflict in this interlocutory appeal. TEX. GOV'T CODE § 22.001(a)(2).

III

Generally, the State of Texas has sovereign immunity from suit unless waived by the Legislature. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). We have construed that immunity to deprive the courts of subject matter jurisdiction over suits against the state or its subdivisions. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). The Legislature, however, has provided a limited waiver of the state's immunity from suit for certain tort claims under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE §§ 101.002, 101.021, 101.025.

The Texas Tort Claims Act includes, among other things, a limited waiver of the state's immunity from suits alleging personal injury or death caused by premises defects. Id. §§ 101.021(2), 101.022. It further provides that in premises defect cases, the state owes the claimant only the duty that a private person owes to a licensee on private property.3 Id. § 101.022(a). When injury or death results on state-owned, recreational land, however, the recreational use statute limits the state's duty even further to that owed by a landowner to a trespasser. Id. § 75.002; see also id. §§ 75.003(g) ("To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under [the Tort Claims Act], this chapter controls."), 101.058 (same).

The Parks Department contends that by classifying the entrant and user of state-owned recreational property as a trespasser, the Legislature reinstated the immunity for premises defect claims waived under the Tort Claims Act. The Department reasons that because a landowner generally has no duty to make its property safe for trespassers, or to warn them of dangerous conditions, it should follow that a trespasser cannot complain about such things. The court of appeals, however, disagreed.

The court concluded that neither the trespasser standard nor the recreational use statute operated to reinstate sovereign immunity for premises defect claims. 131 S.W.3d at 80. The court reasoned that a landowner might have a duty to warn of, or make safe, an unreasonably dangerous condition on its premises, if it were both aware of the condition and the trespassers presence on its property. In so doing, the court followed a distinction drawn in the Restatement between known and unknown or naked trespassers. 131 S.W.3d at 77-80 (citing RESTATEMENT (SECOND) OF TORTS §§ 335, 337).

The Department complains that the court of appeals' reliance on the Restatement has created new duties for landowners, not recognized at common law nor contemplated by the Legislature when it enacted the recreational use statute. The Department submits that the gross negligence standard, expressed both in the statute and as part of the limited duty of care owed to a trespasser, refers only to contemporaneous activities on the premises, and not to the condition of the premises. See, e.g., City of Lubbock, 68 S.W.3d at 859 (citing Flye, 50 S.W.3d at 648)(duty owed a trespasser "does not encompass injury arising from the condition of realty but only injury arising from the activity or conduct of the occupier"); see also City of Fort Worth, 142 S.W.3d at 554 (expressing disagreement with the court of appeals' reasoning in Shumake).

IV

A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity; whereas a premises defect claim is based on the property itself being unsafe. See Keetch v. Kroger Co., 845 S.W.2d...

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