Locke Lord QuickStudy: When What You Are Doing Matters More Than Where You Are Doing It

September 22, 2015

On Friday, September 18, 2015, the Texas Supreme Court issued an important decision narrowly construing Texas’ recreational use statute. The Court ruled that the City of Diboll, Texas (population 5,359 per the 2010 Census; could not claim governmental immunity through the recreational use statute in a lawsuit brought after a grandmother tripped and fell over a hollow pipe protruding from a sidewalk while she was leaving her granddaughter’s soccer game at a City-owned park. Louie Lawson, Representative of the Estate of Carolyn Burns v. City of Diboll, Texas, Cause No. 15-0037.

The recreational use statute provides immunity in certain premises liability cases involving (not surprisingly) “recreation.” When it applies, it limits the liability of landowners by requiring proof of their gross negligence, malicious intent, or bad faith. TEX. CIV. PRAC. & REM. CODE § 75.002(d).

Texas Civil Practice & Remedies Code § 75.001 defines “recreation” 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). For governmentally-owned properties only, the definition is expanded to include: hockey and in-line hockey; skating, in-line skating, roller-skating, skate-boarding, and roller-blading; soap box derby use; and paintball use. TEX. CIV. PRAC. & REM. CODE § 75.002(e). 

The City of Diboll relied on the catch-all “any other activity associated with enjoying nature or the outdoors” from Section 75.001 to argue that immunity through the recreational use statute should apply. Relying on its March 2015 decision in University of Texas at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015), the Court rejected this position and reiterated that “neither watching a competitive-sporting event nor related acts of egress are encompassed in the recreational use statute’s definition of “recreation.’” Slip op. at 3. The Court based its holding on the distinction that watching your granddaughter’s soccer game is not related to “the pursuit of nature but rather the celebration of organized human activity.” Slip op. at 4; Williams, 459 S.W.3d at 54. 

As a matter of statutory construction, the Court’s decision is understandable. But, on a practical level, it seems to make little sense to allow immunity when a person is injured walking their dog in a city-owned park, but not when entering or exiting a soccer game held in that same park. And what if Ms. Burns had brought her dog or her paint gun to the soccer game? Would that have brought this case within the statute? Given the limited resources available to many Texas cities, perhaps there will be a legislative fix for this issue in the next session in January of 2017. In the meantime, we hope our alma mater (The University of Texas) has lots of slip and fall insurance!

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