Louie Lawson, Representative of the Estate of Carolyn Burns v. City of Diboll, Texas

IN THE SUPREME COURT OF TEXAS
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NO . 15-0037
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LOUIE LAWSON, REPRESENTATIVE OF THE ESTATE OF CAROLYN BURNS,
PETITIONER,

v.

CITY OF DIBOLL, TEXAS, RESPONDENT

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS
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PER CURIAM

In this premises-defect case, a spectator at a youth softball game sustained injuries in a

trip-and-fall accident while exiting a baseball complex in a city park. At issue is whether the

recreational use statute encompasses the spectator’s claims against the city and, therefore, elevates the

liability standard required to invoke the Texas Tort Claims Act’s governmental-immunity waiver. See

TEX . CIV . PRAC. & REM . CODE §§ 75.001–.007; State v. Shumake, 199 S.W.3d. 279, 281 (Tex. 2006).

On interlocutory appeal from a trial-court order denying the city’s plea to the jurisdiction, the court of

appeals applied the recreational use statute and dismissed the case for want of subject-matter

jurisdiction. No. 12-13-00344-CV, 2014 WL 6792679, at *1, *5 (Tex. App.—Tyler Dec. 3, 2014)

(mem. op.). The court, however, did not have the benefit of our recent opinion in University of Texas

at Arlington v. Williams, in which we determined that the recreational use statute is inapplicable to

spectators at outdoor competitive-sporting events. 459 S.W.3d 48, 55 (Tex. 2015) (plurality op.); id.
at 63 (Boyd, J., concurring). Following Williams, we reverse and remand to the trial court for further

proceedings.

The relevant jurisdictional facts are not contested. The City of Diboll owns and operates Old

Orchard Park and opens it to the public for various recreational activities. Among other facilities, the

park has a baseball complex at which the Diboll Youth Baseball League holds its games, at no charge

to the league or spectators. On opening day of the youth baseball and softball season, Carolyn Burns

attended her granddaughter’s softball game at the baseball complex with approximately 1,500 other

spectators. After the game, Burns exited the baseball complex and walked toward the parking lot with

family members and other spectators. While walking on a paved sidewalk, Burns tripped on a hollow

pipe protruding from the center of the walkway and was injured. The pipe was designed to hold a

four-foot, vertical metal pole used to prevent unauthorized vehicle access to the baseball complex. On

the day of the incident, the pole was missing. Although the pipe protrusion was painted yellow and

was approximately four-inches high, Burns claimed she did not see it because she was walking in a

crowd of people.

Burns filed a premises-liability lawsuit against the City, alleging the City violated its duty of

ordinary care by creating an unreasonable risk of harm and failing to “provide a safe walkway passage

free of obstacles.”1 In a plea to the jurisdiction, the City invoked the recreational use statute, which

raises the liability standard required to trigger the Texas Tort Claims Act’s immunity waiver in

premises-defect cases involving lands opened to the public for “recreation.” See TEX . CIV . PRAC. &

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W hile the lawsuit was pending in the trial court, Burns died in an automobile accident, and her estate’s
personal representative, Louie Lawson, was substituted as the plaintiff.

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REM . CODE §§ 75.002, .003(d)–(g), 101.021, .022, .025. The City asserted that it retained its immunity

from suit because (1) Burns was engaged in “recreation” at the time of her injury and (2) she neither

pleaded nor produced evidence to satisfy the recreational use statute’s heightened liability standard.

See id. §§ 75.001(3), .002(d).

The trial court denied the plea, but the court of appeals reversed, holding that “spectating at a

sporting event constitutes recreation.” 2014 WL 6792679, at *4. The court determined that Burns’s

activities—watching the game while sitting in a lawn chair and returning to her vehicle

thereafter—qualified as “recreation” under a catchall definition applying to “any other activity

associated with enjoying . . . the outdoors.” Id.; see also TEX . CIV . PRAC. & REM . CODE

§ 75.001(3)(L). In so holding, the court analogized those activities to hiking and picnicking, which

are expressly included in the statutory definition of “recreation.” 2014 WL 6792679, at *4 (citing TEX .

CIV . PRAC. & REM . CODE § 75.001(3)(F), (G)). The court rendered judgment dismissing the case for

want of subject-matter jurisdiction because Burns had conceded the absence of pleadings and proof

of gross negligence. Id. at *5.

Our opinion in Williams, issued after the court of appeals’ opinion, compels a different

conclusion. In Williams, we held that neither watching a competitive-sporting event nor related acts

of egress are encompassed in the recreational use statute’s definition of “recreation.” Williams, 459

S.W.3d at 57 (plurality op.) (holding recreational use statute did not apply to competitive-sporting

events or spectators); id. at 59 (Guzman, J., concurring) (plaintiff was injured following conclusion

of sporting event and her specific activity at that time—signing an authorization form to retrieve minor

participant—was not recreation); id. at 62 (Boyd, J., concurring) (neither spectating at a soccer game

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nor retrieving child thereafter is a recreational activity within the statute’s purview). The facts in

Williams are materially indistinguishable from those in this case.

In Williams, the plaintiff had attended her daughter’s high school soccer game at the University

of Texas football stadium in Arlington. Id. at 49 (plurality op.). After the game concluded, she fell

while leaning on a gate with an inoperable latch. Id. at 50. At the time, she was attempting to procure

a release form required to pick up her daughter. Id. at 58 (Guzman, J., concurring).

Relying on our opinion in Torres v. City of Bellmead, 89 S.W.3d 662 (Tex. 2002), in which

we applied the recreational use statute to enjoyment of playground equipment, the university had

argued that “no difference exists between playgrounds and sports stadiums or between those who

watch or play at either place because both activities are ‘associated with enjoying nature or the

outdoors’” within the meaning of the recreational use statute’s catchall provision. 459 S.W.3d at 55.

The plurality opinion rejected the university’s argument, explaining that “[w]hile both activities are

more likely than not to occur outside, their association with the enjoyment of nature or the outdoors

is different.” Id. The opinion observed that “[g]athering together . . . 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.” Id. at 54. The catchall provision did not encompass the act

of spectating at a competitive-sporting event “[b]ecause the outdoors and nature are not integral to the

enjoyment of [that] activity and because [that] activity is unlike the others the statute [expressly] uses

to define ‘recreation.’” Id. at 55; cf. id. at 59 (Guzman, J., concurring) (“[W]e must construe the

catchall provision narrowly to encompass only those activities closely connected to enjoying the

outdoors.”).

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 Although not embracing the plurality’s analysis, JUSTICE BOYD concurred with the opinion’s

salient holding. Id. at 62 (Boyd, J., concurring). Thus, a majority of the Court agreed that under facts

similar to those in this case, the recreational use statute does not apply.

The City attempts to distinguish Williams by pointing to factual differences between that case

and this one—differences in the degree of competitiveness (nominal vs. interscholastic), the players’

skill levels (Little League vs. high school), venue (city park vs. college stadium), and admission

charges to see the sporting event. While the nature of the sporting event and the venue differ to a

degree, those differences are immaterial under the majority view in Williams, which focused on the

type of activity—spectating at a competitive-sporting event—and its relationship to either the activities

expressly included in the definition of “recreation” or appreciation of the natural world. Id. at 54-55

(plurality op.) (to fall within the statute’s catchall provision, enjoyment of the outdoors or nature must

be integral to enjoyment of the activity); id. at 62 (Boyd, J., concurring) (focusing on the activity’s

nature, not the type of venue); cf. TEX . CIV . PRAC . & REM . CODE § 75.003(c) (except for a

governmental unit, the recreational use statute applies only if no charge for entry or total charges for

entry in preceding calendar year do not exceed twenty times the total amount of ad valorem taxes

imposed on the premises).

Because spectating at a competitive-sporting event is not “recreation” under the recreational

use statute, we reverse the court of appeals’ judgment without hearing oral argument and remand this

case to the trial court. See TEX . R. APP . P. 59.1.

OPINION DELIVERED: September 18, 2015

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