The Texas Supreme Court recently analyzed an important question for Texas landowners: What constitutes gross negligence under the Recreational Use Statute? The court’s opinion in Suarez v. City of Texas City focuses on other issues such as governmental immunity as well, but also offers insight into how gross negligence is analyzed under the Recreational Use Statute. [Read full opinion here.]
As you may recall from this prior blog post, Texas has a Recreational Use Statute which essentially shields Texas landowners from liability if a person is injured on agricultural land while engaging in a recreational activity. (Note that portions of the statute also apply to non-agricultural land as well.) If a landowner falls under the protections of the Recreational Use Statute, the landowner is liable only if a jury finds that he or she acted intentionally or with gross negligence. Understanding exactly what constitutes gross negligence (for which landowners may be liable despite the Recreational Use Statute) is critically important.
Three members of the Suarez family–two girls and their father–drowned at a man-made beach near the Texas City Dike. The surviving wife/mother filed suit claiming that the City should have posted more warnings or closed the beach due to the risk of drowning. She alleged that the City was grossly negligent in failing to warn the public about the dangers of drowning.
The trial court sided with the plaintiff, but the 1st Court of Appeals in Houston reversed, dismissing the claim because there was no factual evidence that the City acted with gross negligence. The plaintiff appealed to the Texas Supreme Court. The issue, then, before the Texas Supreme Court was whether the plaintiff introduced a factual question of whether the City acted with gross negligence. Without such facts in the record, the case must be dismissed. If, on the other hand, sufficient evidence was introduced to create an issue of fact, the case would proceed to a jury.
Supreme Court’s Opinion
The Supreme Court sided with the City, finding no factual issue related to gross negligence. For our purposes, less important than the facts is the analysis undertaken by the Court.
The Supreme Court explained that in analyzing whether someone acted grossly negligent, both objective and subjective factors must be considered. Specifically, the Court considered: (1) when viewed objectively from the standpoint of the actor at the time of its occurrence, did the act or omission involve an extreme degree of risk, considering the probability and magnitude of potential harm to others; and (2) did the actor have actual, subjective awareness of the risk involved, but nevertheless proceed with conscious indifference to the rights, safety or welfare of others? See Tex. Civ. Prac. & Rem. Code Section 41.001(11). Put another way, “the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.”
The problem for the plaintiff in this case is that she was unable to offer evidence that the City was subjectively aware of the perils at the beach. To show this, a plaintiff would have to prove that the City had “knowledge that the dangerous condition existed at the time of the accident.” The Court reasoned that no evidence was offered to show that the City was aware of any dangerous conditions at the Dike that exceeded those risks inherently present with swimming in open water. The fact that the City erected signs warning participants to “swim at their own risk” may be evidence that the City was aware of dangers associated with swimming generally, but not that the City was aware of specific dangers related to the riptides that day causing the deaths. This makes clear that knowledge of general dangers of a recreational activity may not be sufficient to prove gross negligence. Further, the Court found evidence that other drowning deaths had occurred in the area previously to be unpersuasive, as the other deaths were not proven to be factually similar to the Suarez family’s deaths in this case. Indeed, the plaintiff offered no evidence describing the facts surrounding other drownings such as dates, location, frequency, or circumstances thereof.
Because there was no evidence to support a claim of gross negligence on behalf of the City, the recreational use statute barred liability. Without liability under the Recreational Use Statute, the City was immune from suit in this matter. Thus, the lawsuit was dismissed.
Why Should We Care?
Why should Texas agriculture care about the result of a drowning case against a coastal city? Because a similar analysis of “gross negligence” would apply to determine if a Texas landowner is protected by the Recreational Use Statute. The same two factor test–did the act or omission involve an extreme degree of risk and did the actor have actual knowledge of the specific risk involved but proceed with conscious indifference–would apply to a recreational use case occurring on private, agricultural land.
It is important to always exercise care and act reasonably when dealing with any potentially dangerous situation or with people coming onto your land. In order to receive the added statutory liability protection offered by the Recreational Use Statute, it is critical that Texas landowners do not act with gross negligence, which precludes application of the statutory protections. I also highly recommend visiting with an insurance agent to ensure adequate insurance coverage exists in the event someone is injured on your property.