Univ. of Tex. at Arlington v. Williams

• Decision Date: 20 March 2015
• Docket Number: No. 13–0338,13–0338
• Citation: 459 S.W.3d 48
• Parties: University of Texas at Arlington, Petitioner, v. Sandra Williams and Steve Williams, Respondents
• Court: Texas Supreme Court

459 S.W.3d 48

University of Texas at Arlington, Petitioner

v.Sandra Williams and Steve Williams, Respondents

No. 13–0338

Supreme Court of Texas.

Argued October 9, 2014

Opinion Delivered: March 20, 2015

Laura F. Mueller, Austin, for Amicus Curiae Texas City Attorneys Association, Texas Municipal League.

Arthur Cleveland D'Andrea, Assistant Solicitor General, Daniel T. Hodge, First Asst. Attorney General, Dustin Mark Howell, Greg W. Abbott, Attorney General of Texas, Jonathan F. Mitchell, Solicitor General, Kevin Desiderio Molina, Office of the Attorney General of Texas, Austin, for Petitioner University of Texas at Arlington.

Christopher J. Harris, David Lee Cook, Kimberly Fitzpatrick, Harris Cook LLP, Arlington, for Respondents Sandra Williams, Steve Williams.

Opinion

Justice Devine announced the judgment of the Court and delivered an opinion, in which Chief Justice Hecht, Justice Green, and Justice Lehrmann joined.

The recreational use statute provides limited protection to landowners and occupants who open their property for public recreational purposes. SeeTex. Civ. Prac. & Rem. Code §§ 75.001.007 (the recreational use statute). When applicable, the statute effectively immunizes the landowner or occupant from ordinary negligence claims associated with the property's recreational use by requiring the plaintiff to establish gross negligence. See id . § 75.002(c)-(d), (f). The statute, however, only applies to certain recreational uses that it defines through a list of activities it considers to be “recreation.” Id . § 75.001(3).

The question here is whether the statute's recreational-activity list reasonably includes a spectator at a competitive-sports event. The court of appeals concluded that this activity was too dissimilar to the others on the list to be included and accordingly held it was not “recreation” under the statute. 455 S.W.3d 640, 645 (Tex.App.–Fort Worth 2013) (mem.op.). We agree. Although members of this Court have different views on the nature of the injury-producing activity in this case, we agree that the recreational use statute does not bar the underlying action. The court of appeals' judgment is accordingly affirmed.

I

Sandra Williams and her husband sued the University of Texas at Arlington (UTA) for injuries Williams sustained when she fell at Maverick Stadium. The stadium is a 12,500 seat, multipurpose facility located on the western edge of the UTA campus. It served as UTA's football stadium through the 1985 season, after which the university gave up its football program. The stadium is now used by the university's track-and-field teams and is also leased to the Arlington Independent School District for football games and other events. The Williamses were at the stadium to watch their daughter's high school soccer game.

After the game, Williams walked down the stadium stairs to wait for her daughter, stopping at a guard rail that separates the stands from the playing field. The stands are elevated above the field, but a gate in the railing provides access to the field when portable stairs are in place. On this occasion, the stairs were not there, and the gate was closed.

The gate's latch had previously broken off, but the gate was secured with a chain and padlock. While waiting for her daughter, Williams leaned against this gate, which unexpectedly opened. Williams fell five feet to the artificial-turf field below, injuring a rib and her left arm.

In her premises liability suit against the university, Williams alleged that UTA was negligent and grossly negligent in securing the gate with a chain and lock it knew to be inadequate, and in failing to maintain the gate and repair its broken latch. UTA responded with a general denial, a plea to the jurisdiction, and a motion to dismiss, asserting sovereign immunity and the recreational use statute. See Tex. Civ. Prac. & Rem. Code §§ 75.003(G), 101.058 (providing that to the extent the recreational use statute applies, it controls over the Tort Claims Act).

Williams argued that the recreational use statute did not apply because she was not engaged in a recreational activity at the time of the accident. In the alternative, she argued that, if the statute applied, UTA's plea and motion to dismiss should still be denied because she had raised a fact question regarding UTA's gross negligence. When applicable, the recreational use statute limits the liability of landowners by requiring proof of their gross negligence, malicious intent, or bad faith in the premises liability case. Tex. Civ. Prac. & Rem. Code § 75.002(d).

The trial court denied UTA's plea and motion, apparently agreeing with Williams' arguments. The court of appeals affirmed. 455 S.W.3d 640. UTA appealed. We granted UTA's petition to consider whether attending a soccer game as a spectator is a recreational activity under the recreational use statute.

II

We begin, however, with our own jurisdiction, which is limited when the appeal is from an interlocutory order, such as the trial court's order here denying UTA's plea to the jurisdiction. UTA, a state university, argues that we have jurisdiction under section 51.014(a)(8) of the Civil Practice and Remedies Code, which authorizes an interlocutory appeal from the grant or denial of “a plea to the jurisdiction by a governmental unit” such as UTA. Interlocutory appeals, however, are generally final in the court of appeals unless there is a dissent in that court or a conflict with another decision. See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 656 (Tex.2007) ; see also Tex. Gov't Code §§ 22.001(a)(2), 22.225(b)(3), (c).

UTA argues that the court of appeals' decision here conflicts with one of our prior decisions. See City of Bellmead v. Torres, 89 S.W.3d 611 (Tex.2002). In City of Bellmead, we concluded that the recreational use statute applied to the user of playground equipment in a city park because the activity was of a type that the Legislature intended to include as recreation. Id . at 615. UTA argues that the users of stadiums and sports fields are similarly engaged in recreation under the statute and that the court of appeals' determination to the contrary is in conflict with City of Bellmead . UTA further points out that the court of appeals' decision here conflicts with another court of appeals' decision, which applied the recreational use statute to a spectator at a baseball game. See Sam Houston State Univ. v. Anderson, No. 10–07–00403–CV, 2008 WL 4901233, at *3 (Tex.App.–Waco Nov. 12, 2008, no pet.) (mem.op.) (concluding that statute applied to a spectator whose arm was broken when the bleachers collapsed during a baseball game).

Decisions conflict when there is an “inconsistency in [the] respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Tex. Gov't Code § 22.225(e). The conflict here satisfies that definition and thus supports our jurisdiction. We turn then to the recreational use statute and the question presented: whether a spectator at a competitive-sports event is engaged in “recreation” under the recreational use statute.

III

The recreational use statute protects landowners who open property for recreational purposes, limiting their liability to the recreational user. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). The statute accomplishes this by elevating the burden of proof in premises liability cases in which it applies. See Stephen F. Austin State Univ., 228 S.W.3d at 659 (noting that the statute “effectively requires ... either gross negligence or an intent to injure”). The statute, however, only applies to recreational uses, which the statute defines through a non-exclusive list of included activities. Under the statute,

“Recreation” means an activity such as:

(A) hunting;

(B) fishing;

(C) swimming;

(D) boating;

(E) camping;

(F) picnicking;

(G) hiking;

(H) pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles;

(I) nature study, including bird-watching;

(J) cave exploration;

(K) waterskiing and other water sports;

(L) any other activity associated with enjoying nature or the outdoors;

(M) bicycling and mountain biking;

(N) disc golf;

(O) on-leash and off-leash walking of dogs; or

(P) radio control flying and related activities.

Tex. Civ. Prac. & Rem. Code § 75.001(3) (emphasis added).

The issue in this case is whether the statutory term “recreation” reasonably includes competitive sports and their spectators. We did not answer that question in City of Bellmead v. Torres . See 89 S.W.3d at 614 ( declining to decide whether “softball is ... recreation within the meaning of the Statute”). We did, however, apply subpart (L) in that case to enlarge the statutory list to include an omitted activity. Id . at 615. Because competitive team sports—like soccer—and spectating are also omitted from the recreational-activities list, the focus again is on subpart (L)'s “any other activity associated with enjoying nature or the outdoors .”

As mentioned, we did not decide whether playing or watching softball was “recreation” in City of Bellmead . The court of appeals there, however, considered the issue and decided it was not under the statute. Torres v. City of Bellmead, 40 S.W.3d 662, 664–65 (Tex.App.–Waco 2001), rev'd on other grounds, 89 S.W.3d 611 (Tex.2002). Although Torres had gone to the city's softball complex to play softball, we declined to consider her purpose for entering the park, reasoning that her purpose for entry did not control the statute's application. City of Bellmead, 89 S.W.3d at 614. Instead of softball, we focused on Torres' use of a swing set in the park because that was the activity that led to her injury. Id . In reversing the court of appeals, we reasoned that the use of playground equipment, although not specifically included in the statutory list as a recreational activity, was nevertheless covered as “the type of activity ‘associated with enjoying ... the outdoors' ” under subpart (...