The deaths of a young father and his twin daughters happened when they went swimming in the Texas City Dike, a man-made peninsula jutting into Galveston Bay. The U.S. Army Corps of Engineers constructed the Dike to reduce the flow of silt into the channel, and the deposits from the Corps' dredging eventually created a man-made beach.
On the day of the accident, the tide was high and the water was choppy, but Hector Suarez and his two daughters began struggling approximately 10 feet from the beach and the two other men who attempted to rescue them barely made it back to the shore themselves. William Worsham, a costal engineer, testified at trial how certain beaches can create such strong currents. He also testified that the dangerous conditions of the beach arose from the interplay of man-made and natural forces.
According to the Petitioner, the City of Texas City ("Texas City") knew about the dangers and failed to warn the public of those dangers.
Procedure and Law
Under the Texas Tort Claims Act, a governmental entity cannot use the defense of governmental immunity if it breaches a duty of care that a private party would owe to a licensee. See Tex. Civ. Prac. & Rem. Code §§ 101.021-.022, .025. But, if premises are open to the public for recreational activities, the Recreational Use Statute requires the Plaintiff to prove gross negligence, malicious intent, or bad faith in order to claim the entity waived its immunity. Id. 75.002; State v. Shumake, (Tex. 2006).
In this case, the Petitioner alleged gross negligence, and thus would only prevail if Texas City (1) knew about a condition of the property giving rise to an extreme degree of risk and (2) proceeded with conscious indifference to the rights, safety, or welfare of others. The trial court denied the Plea to the Jurisdiction filed by Texas City, but the court of appeals reversed and dismissed the Plaintiffs' claims.
The Court's Analysis
The Supreme Court noted that, in previous cases, it imposed a duty to warn whenever the risk of harm is latent and not so inherent in the recreational use that it could reasonably be anticipated. On the other hand, if the danger is open and obvious, no duty can arise. For instance, the Court found a duty in Shumake when a man-made structure, an underground culvert, interacted with river tubing to create a powerful undertow that lead to a girl's drowning. Yet the Court found no duty when a cliff collapsed under the decedent, holding that the edge of a cliff is inherently dangerous. City of Waco v. Kirwan (2009).
The Court's Decision
The Court affirmed the court of appeals' judgment. It held that Texas City was under no duty to warn Hector Suarez and his daughters because Texas City did not know of the serious risks that the Dike created. It was likely Hurricane Ike made the Dike more treacherous, and many swimmers had used the Dike previously for decades without any high degree of serious incidents. In any case, there was no evidence that any governmental employee knew that the waters were dangerous.
The Bottom Line
In premises cases involving recreational activities, the Plaintiff has to prove gross negligence which is a very high burden to meet. For instance, in this case, it was not enough that Texas City had opened the area to the public for swimming or that it had no signs prohibiting swimming at that location.
These facts did not prove actual knowledge of the danger. Thus, the Court seemed to suggest that, when proving gross negligence, a Plaintiff cannot rely on the presumption that inferences will be construed in their favor due to the standard of review. Rather, as the Court stressed, "circumstantial evidence can establish actual knowledge, but such evidence must either directly, or by reasonable inference, support that conclusion"; when two facts could equally explain the evidence, neither inference is proper.
When Plaintiff's counsel are merely relying on the assumption that the Defendant must have actually known of the extreme danger just because the danger existed, Defense counsel should stress to the Court that the Plaintiff has not borne her burden of proof.