It's that time of year again... time to get outside and enjoy some recreation before the dog days of summer are upon us. But first, something to keep in mind: owners and operators of recreational facilities enjoy a limited protection from liability from guests of their facilities who engage in certain recreational activities.
Specifically, under the Texas Recreational Use Statute, owners and operators of property used for public recreation are immune from traditional negligence claims and may only be liable for gross negligence, which imposes a much higher burden of proof on anyone seeking to bring a personal injury claim against the owners or operators of the recreational facility.
So the question is, what qualifies as a recreational activity? This varies significantly from state to state, but in Texas, the statute from 1965 originally covered only hunting, fishing, and camping. The Legislature has since expanded the statute to include the long list of covered activities that we have today:
(H) pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles and recreational off- highway 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.
Subsection L has traditionally been considered a "catch-all" category; however, the scope of this subsection was the source of litigation in two recent cases before the Texas Supreme Court. First, in Univ. of Tex. at Arlington v. Williams, the Court examined whether a spectator at a competitive sports event is engaged in a "recreational" activity covered by the statute. The Court concluded that competitive sports are not recreational activities, contrary to an earlier opinion from a lower court. The Supreme Court also distinguished this holding from its earlier opinion in City of Bellmead v. Torres, in which the Court held that using playground equipment is a recreational activity covered by the catch-all category in the statute. In comparing the two, the court observed that: "While both activities are more likely than not to occur outside, their association with the enjoyment of nature or outdoors is different.... Gathering together in a stadium to cheer a soccer team is not to remove oneself from human habitation but to embrace it; it is not the pursuit of nature but rather the celebration of organized human activity." Second, in Lawson v. City of Diboll, the Court re-asserted its conclusion that "spectating at a competitive-sporting event is not 'recreation' under the recreational use statute."
- The Texas Recreational Use Statute does NOT protect owners and operators of recreational facilities from traditional negligence claims brought by guests who are injured while spectating at competitive sports events.
- Any analysis of whether a recreational activity falls within the "catch-all" category of the Texas Recreational Use Statute must include an evaluation of whether the recreational activity is focused on "the pursuit of nature" or on "the celebration of organized human activity."